The Non-Delegation Doctrine: A Constitutional Mystery

The nondelegation doctrine is a principle that restricts one branch of government from delegating the powers or functions it is constitutionally authorized to exercise to another entity. It is a concept that is implicit in all written constitutions that impose a strict structural separation of powers. The doctrine has been used to argue against the expansion of bureaucratic power, with proponents arguing that delegation undermines public accountability and violates the separation of powers. The nondelegation doctrine has been applied in cases involving the delegation of powers between the three branches of government, to the administrative state, or to private entities.

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Separation of powers

The nondelegation doctrine is a principle that prohibits one branch of government from authorising another entity to exercise powers or functions that it is constitutionally authorised to exercise itself. This doctrine is typically applied to questions of constitutionally improper delegations of powers between the three branches of government, or to private entities.

The nondelegation doctrine is most commonly used in connection with administrative law and constitutional law. The doctrine is rooted in the separation of powers principle, which states that all legislative powers granted by the Constitution are vested in Congress. This is explicit or implicit in all written constitutions that impose a strict structural separation of powers.

The nondelegation doctrine has been used to argue against the expansion of bureaucratic power, for example, in the case of the Food and Drug Administration (FDA). Congress delegated to the FDA the power to regulate food and drugs in the United States, but it is up to the agency to assess risks and announce prohibitions on harmful additives. Similarly, the Internal Revenue Service (IRS) has been delegated the authority to determine how taxes are collected.

The Supreme Court has clarified that when Congress gives an agency the ability to regulate, it must provide an intelligible principle on which the agency should base its regulations. This standard is viewed as quite lenient and has rarely been used to strike down legislation. The Supreme Court has only found violations of the nondelegation doctrine twice, in Panama Refining and Schechter Poultry in 1935.

Opponents of a strict interpretation of the nondelegation doctrine argue that the increasing complexity of society requires Congress to delegate complex regulatory burdens to agencies. Proponents, on the other hand, argue that delegation violates the separation of powers, undermines public accountability, and is unconstitutional.

Congressional delegation

The nondelegation doctrine is the principle that one branch of the government cannot authorise another entity to exercise powers or functions that it is constitutionally authorised to exercise itself. In the United States, the nondelegation doctrine holds that the Congress of the United States, being vested with "all legislative powers" by Article One, Section 1 of the United States Constitution, cannot delegate that power to anyone else.

The nondelegation doctrine is most commonly used in connection with administrative law and constitutional law. For example, Congress has given the Food and Drug Administration (FDA) the power to regulate food and drugs in the United States, and the Internal Revenue Service (IRS) the authority to determine how taxes are to be collected. The nondelegation doctrine has been used to argue against the constitutionality of expanding bureaucratic power in these cases.

The Supreme Court has clarified that when Congress does give an agency the ability to regulate, it must provide the agencies with an intelligible principle on which to base their regulations. This standard is viewed as quite lenient and has rarely been used to strike down legislation. However, in 1998, the Supreme Court ruled that the Line Item Veto Act of 1996, which authorised the President to selectively void portions of appropriation bills, was a violation of the Presentment Clause.

The nondelegation doctrine developed slowly during the nineteenth and early twentieth centuries, partly due to the relatively few statutes that were enacted and the lack of executive agencies to exercise those delegations. One of the earliest cases involving the exact limits of nondelegation was Wayman v. Southard (1825). Congress had delegated to the courts the power to prescribe judicial procedure, and it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers.

Legislative authority

The nondelegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making abilities to other entities. This doctrine is derived from an interpretation of Article I of the US Constitution, which states that all legislative powers are vested in Congress. The doctrine is also related to the separation of powers principle, which is explicit or implicit in all written constitutions that impose a strict structural separation of powers.

The nondelegation doctrine is most commonly applied in questions of constitutionally improper delegations of powers of the three branches of government to each other, to the administrative state, or to private entities. The doctrine is intended to foster accountability in government by enabling citizens to know who to hold responsible for government actions.

The Supreme Court has clarified that when Congress delegates its power to an agency, it must provide an intelligible principle on which the agency can base its regulations. This standard is viewed as quite lenient and has rarely been used to strike down legislation. However, in 1935, the Supreme Court held that "Congress is not permitted to abdicate or transfer to others the essential legislative functions with which it is thus vested."

There are several arguments for and against the strict interpretation of the nondelegation doctrine. Opponents argue that the increasing complexity of society requires Congress to delegate complex regulatory burdens to agencies. Proponents argue that delegation violates the separation of powers, undermines public accountability, and is unconstitutional.

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Federal administrative power

The non-delegation doctrine is a principle that prohibits one branch of government from authorising another entity to exercise the power or function that it is constitutionally authorised to exercise itself. This typically involves Congress delegating its powers to administrative agencies or private organisations. The doctrine is most commonly used in connection with administrative law and constitutional law.

The non-delegation doctrine is derived from an interpretation of Article I of the United States Constitution and the separation of powers principle, which states that all legislative powers granted by the Constitution are vested in Congress. In other words, Congress cannot delegate its legislative powers or law-making abilities to other entities. This includes the president, administrative agencies, private corporations, or courts.

The development of federal administrative power has evolved from a small number of key federal agencies that existed before the Civil War to the current modern administrative state. During the nineteenth and early twentieth centuries, the non-delegation doctrine developed slowly due to the relatively few statutes enacted and the lack of executive agencies to exercise those delegations.

The Supreme Court has upheld a broad delegation of authority to certain agencies, stating that the "necessities of modern legislation dealing with complex economic and social problems require delegation". For example, the Food and Drug Administration (FDA) is an agency in the executive branch created by Congress with the power to regulate food and drugs in the United States. Congress has given the FDA a broad mandate to ensure public safety and prevent false advertising, but the agency is responsible for assessing risks and announcing prohibitions on harmful additives. Similarly, the Internal Revenue Service has been delegated the authority to determine how taxes are collected, while Congress determines the amount of tax to be assessed.

Judicial procedure

The nondelegation doctrine is the principle that Congress cannot delegate its legislative powers or law-making abilities to other entities. The doctrine is based on the interpretation of Article I of the United States Constitution and the separation of powers principle, which states that all legislative powers granted by the Constitution are vested in Congress.

In the context of judicial procedure, the nondelegation doctrine has been used to argue against the constitutionality of expanding bureaucratic power. For example, in the case of Field v. Clark in 1892, the Court noted that "Congress cannot delegate legislative power to the president", while holding that the tariff-setting authority delegated in the McKinley Act was not law-making but rather empowered the executive branch to serve as a "mere agent" of Congress.

The Supreme Court has clarified that when Congress gives an agency the ability to regulate, it must provide the agencies with an intelligible principle on which to base their regulations. This standard is viewed as quite lenient and has rarely been used to strike down legislation. However, in 1935, the Supreme Court held that "Congress is not permitted to abdicate or transfer to others the essential legislative functions with which it is thus vested".

The nondelegation doctrine has also been applied in cases involving the delegation of powers to the judiciary. For example, in Wayman v. Southard, the Court upheld the Process Acts of 1789, which authorized federal courts to issue writs to execute their judgments. The Court declared that Congress may delegate to others powers that the legislature may rightfully exercise itself.

Opponents of a strict interpretation of the nondelegation doctrine argue that the increasing complexity of society requires Congress to delegate complex regulatory burdens to agencies. Proponents of a strict interpretation argue that delegation violates the separation of powers, undermines public accountability, and is unconstitutional. Judicial reform proposals related to the nondelegation doctrine include approaches to addressing challenges, such as the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require Congressional approval of certain agency rules.

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