An often‐repeated proposition of Anglo‐American law is that delegated authority cannot be redelegated. In the case of the Supreme Court, the doctrine of nondelegation purportedly derives from the Constitution, although admittedly without any basis in the constitutional text. The usual argument for the invalidity of delegation of powers turns on the concept of separation of powers, that is, the forbidding of certain general powers to one or another of the general branches of government. Actually, there are few specific constitutional provisions for the separation of powers. There are provisions for checks and balances among the three branches of government, however. Separation of powers would create monopolies of certain powers in particular branches; checks and balances forbids such monopolies and, in fact, generally requires the joinder of two branches before governmental action is validated. Thus, the legislature cannot enact a law without presidential approval or, if the president disapproves, a two‐thirds overriding vote of each house; the judicial branch cannot pass judgment except within legislatively defined limits specified by statute; no one may expend moneys except those appropriated by the legislature and according to the terms specified by the legislature.
The Court has adhered to a limited concept of separation of powers not unlike that prescribed by the Massachusetts Constitution of 1780. Within this judicially recognized doctrine of separation of powers it has spoken of a nondelegation of powers by one branch to another. In cases such as Field v. Clark (1892) the issue has usually involved delegation of legislative power to the executive branch. But the doctrine applies to the other branches as well. Congressional authority has often been shared with or delegated to another branch of government, but, as under most constitutional doctrines, the question has not been whether the executive branch is exercising any legislative power but whether it is exercising too much legislative power. “How much is too much?”—is the question that tries the capacities of the justices.
It should be noted that the Supreme Court, for all the lip service it has paid to the so‐called doctrine of invalid delegation, has only once in its history struck down legislation as unconstitutional on this ground. In the mid‐1930s, when the Court was rapidly disabling New Deal legislation, the Court concluded in three cases (Panama Refining Co. v. Ryan, 1935; Schechter Poultry Corp. v. United States, 1935; Carter v. Carter Coal Co., 1936) that Congress had improperly provided for delegation of legislative power. But the holdings in these New Deal cases could not have been based on a theory of separation of powers, because, as the majority said in Carter, this was delegation “in its most obnoxious form, for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and are adverse to the interests of others in the same business” (p. 311).
The concept of invalid delegation of legislative power is phoenixlike in its appearance in American judicial history, burning fiercely from time to time, turning to ash, then reviving. It was thought to have been ultimately disposed of in Yakus v. United States (1944). In that case, Congress had granted price‐fixing powers to the Office of Price Administration during World War II without specifying any standards for guidance except that the prices fixed be “fair and equitable.” The statute was sustained despite the challenge of invalid delegation, a doctrine not seriously raised again for a generation. The Court had already decided, in United States v. Curtiss‐Wright Export Corp. (1936), that the “invalid delegation doctrine” had less bite in the area of foreign affairs than in domestic law.
Every branch of government of necessity exercises some rule‐making, enforcement, and adjudicative powers. Since no totally pure system of separation of powers can exist, the problem of delegation is likely to arise in each of the three branches. Thus, while the Constitution gives the exclusive power to impeach government officials to Congress, it leaves criminal prosecution of such officials to law enforcement, that is to the executive branch. Where the official suspected of wrongdoing is in a sufficiently influential position, it is sometimes thought necessary to go outside the administration for prosecution to ensure a fair and unbiased proceeding. Congress has provided for appointment of a special prosecutor under such circumstances. Once again, problems of invalid delegation of authority arise. The special prosecutor is an executive‐branch official, so under what circumstances can the president be prevented from discharging him or her? That question arose during the Watergate scandal of the early 1970s but did not receive judicial resolution. A decade and a half later, in Morrison v. Olson (1988), a case that arose out of the Iran‐Contra scandal, the Court held that the special prosecutor arrangement was a valid delegation of power.
Thus, in Morrison the doctrine of invalid delegation reappeared, only to be rejected once again. Though objection was made to empowering the appointment of a special prosecutor who could not be removed even by the president except for “good cause shown,” the displacement of ordinary, attorney general–supervised processes and the consequent delegation of executive power were sustained. The following year, when a challenge was made to the promulgation of sentencing guidelines in criminal cases by appointees of the president, replacing the judicial power that had previously been exercised, the “invalid delegation” rubric was again found inadequate (Mistretta v. United States, 1989).
Most recently, the Court revisited the issue in Whitman v. American Trucking Associations, Inc. (2001), and once again the justices reiterated their nondelegation holding, in this instance in support of the Environmental Protection Agency. Writing for a unanimous Court, Justice Antonin Scalia adamantly explained that only Congress can cure an unconstitutional delegation, because only Congress has the power to delegate such power in the first place. Moreover, the Court noted, only the courts (not Congress or the agency) have the power to determine whether the delegation is constitutional. The Court in American Trucking maintained a lenient application of the non‐delegation doctrine in a manner consistent with the past seventy years of precedent. The decision marked an apparent departure for Chief Justice William H. Rehnquist, who during the 1980's had twice called for a stricter application of the non‐delegation doctrine.
Given the current trend toward an ever‐expanding administrative state, and given the Court's unanimous position in American Trucking, it seems likely that the nondelegation doctrine will continue to exist in name only. However, the Court's recent actions suggest that the justices may well be more willing to allow an agency unfettered adjudicatory power, as opposed to unfettered rule‐making power.
Invalid delegation is spoken of as a constitutional question, but it is more likely to be used as a standard of statutory construction than one of constitutional validity. It adds one more device to the judicial arsenal for shaping national legislation closer to the Court's predilections and almost never serves as a rule of decision.
Bibliography
- Amee B. Bergin,
Does Application of the APA's ‘Committed to Agency Discretion’ Exception Violate the Nondelegation Doctrine? Boston College Environmental Affairs Law Review28 (2001)
— Philip B. Kurland
