Nondelegation doctrine
Encyclopedia
The doctrine of nondelegation describes the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit
or implicit in all written constitution
s that impose a strict structural separation of powers
. It is usually applied in questions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch.
does not permit Parliament or the provincial legislatures to delegate their powers to each other.
, the nondelegation doctrine is the principle 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. However, the Supreme Court ruled in In J.W. Hampton, Jr., & Co. v. United States (1928) that Congressional delegation of legislative authority is an implied power
of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch: "'In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.' So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'"
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 the safety of the public and prevent false advertising
, but it is up to the agency to assess risks and announce prohibitions on harmful additives, and to determine the process by which actions will be brought based on the same. Similarly, the Internal Revenue Service
has been given the responsibility of collecting taxes that are assessed under the Internal Revenue Code
. Although Congress has determined the amount of the tax to be assessed, it has delegated to the IRS the authority to determine how such taxes are to be collected. Administrative agencies
like these are sometimes referred to as the Fourth Branch of government.
wrote:
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
; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice
John Marshall
conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details." In 1892, the Court in Field v. Clark, 143 U.S. 649, noted "That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution."
During the 1930s, Congress provided the executive branch with wide powers to combat the Great Depression
. The Supreme Court case of Panama Refining v. Ryan, 293 U.S. 388
(1935) involved the National Industrial Recovery Act
, which included a provision prohibiting interstate shipment of petroleum
in excess of certain quotas. The President
was given the power to ensure that the provision was followed. In the Panama Refining case, however, the Court struck down the provision on the ground that Congress had set "no criterion to govern the President's course."
Other provisions of the National Industrial Recovery Act were also challenged. In Schechter Poultry Corp. v. United States
(1935), the Supreme Court considered a provision which permitted the President to approve trade codes, drafted by the businesses themselves, so as to ensure "fair competition." The Supreme Court found that, since the law sets no explicit guidelines, businesses "may roam at will and the President may approve or disapprove their proposal as he may see fit." Thus, they struck down the relevant provisions of the Recovery Act.
In the 1989 case Mistretta v. United States
, the Court stated that:
Only rarely has the Supreme Court invalidated laws as violations of the nondelegation doctrine. Exemplifying the Court's legal reasoning on this matter, it ruled in the 1998 case Clinton v. City of New York
that the Line Item Veto Act of 1996
, which authorized the President to selectively void portions of appropriation bill
s, was a violation of the Presentment Clause
, which sets forth the formalities governing the passage of legislation. Although the Court noted that the attorneys prosecuting the case had extensively discussed the nondelegation doctrine, the Court declined to consider that question. However, Justice Kennedy
, in a concurring opinion
, wrote that he would have found the statute to violate the exclusive responsibility for laws to be made by Congress.
Explicit
Explicit can mean:* Sexually explicit, content that might be deemed offensive or graphic* the final words of a text, which are immediately followed by a colophon...
or implicit in all written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s that impose a strict structural separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. It is usually applied in questions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch.
Canada
Canadian federalismCanadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
does not permit Parliament or the provincial legislatures to delegate their powers to each other.
United States
In Federal Government of the United StatesFederal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
, the nondelegation doctrine is the principle that the Congress of the United States, being vested with "all legislative powers" by Article One
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
, Section 1 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, cannot delegate that power to anyone else. However, the Supreme Court ruled in In J.W. Hampton, Jr., & Co. v. United States (1928) that Congressional delegation of legislative authority is an implied power
Implied powers
Implied powers, in the United States, are those powers authorized by a legal document which, while not stated, seem to be implied by powers expressly stated...
of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch: "'In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.' So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'"
For example, the Food and Drug Administration
Food and Drug Administration
The Food and Drug Administration is an agency of the United States Department of Health and Human Services, one of the United States federal executive departments...
(FDA) is an agency in the Executive branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
created by Congress with the power to regulate food
Food
Food is any substance consumed to provide nutritional support for the body. It is usually of plant or animal origin, and contains essential nutrients, such as carbohydrates, fats, proteins, vitamins, or minerals...
and drugs
Approved drug
In the United States, the FDA approves drugs. Before a drug can be prescribed, it must undergo an extensive FDA approval process. This process involves first testing the drug on animals or in medical labs. If found to be safe by the FDA and approved for the next phase of study, the drug is then...
in the United States. Congress has given the FDA a broad mandate to ensure the safety of the public and prevent false advertising
False advertising
False advertising or deceptive advertising is the use of false or misleading statements in advertising. As advertising has the potential to persuade people into commercial transactions that they might otherwise avoid, many governments around the world use regulations to control false, deceptive or...
, but it is up to the agency to assess risks and announce prohibitions on harmful additives, and to determine the process by which actions will be brought based on the same. Similarly, the Internal Revenue Service
Internal Revenue Service
The Internal Revenue Service is the revenue service of the United States federal government. The agency is a bureau of the Department of the Treasury, and is under the immediate direction of the Commissioner of Internal Revenue...
has been given the responsibility of collecting taxes that are assessed under the Internal Revenue Code
Internal Revenue Code
The Internal Revenue Code is the domestic portion of Federal statutory tax law in the United States, published in various volumes of the United States Statutes at Large, and separately as Title 26 of the United States Code...
. Although Congress has determined the amount of the tax to be assessed, it has delegated to the IRS the authority to determine how such taxes are to be collected. Administrative agencies
Independent agencies of the United States government
Independent agencies of the United States federal government are those agencies that exist outside of the federal executive departments...
like these are sometimes referred to as the Fourth Branch of government.
Case law
The origins of the nondelegation doctrine, as interpreted in U.S., can be traced back to, at least, 1690, when John LockeJohn Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
wrote:
The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it it in other hands.
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
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details." In 1892, the Court in Field v. Clark, 143 U.S. 649, noted "That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution."
During the 1930s, Congress provided the executive branch with wide powers to combat the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
. The Supreme Court case of Panama Refining v. Ryan, 293 U.S. 388
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1935) involved the National Industrial Recovery Act
National Industrial Recovery Act
The National Industrial Recovery Act , officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 (Ch. 90, 48 Stat. 195, formerly...
, which included a provision prohibiting interstate shipment of petroleum
Petroleum
Petroleum or crude oil is a naturally occurring, flammable liquid consisting of a complex mixture of hydrocarbons of various molecular weights and other liquid organic compounds, that are found in geologic formations beneath the Earth's surface. Petroleum is recovered mostly through oil drilling...
in excess of certain quotas. The President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
was given the power to ensure that the provision was followed. In the Panama Refining case, however, the Court struck down the provision on the ground that Congress had set "no criterion to govern the President's course."
Other provisions of the National Industrial Recovery Act were also challenged. In Schechter Poultry Corp. v. United States
Schechter Poultry Corp. v. United States
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress's power under the commerce clause...
(1935), the Supreme Court considered a provision which permitted the President to approve trade codes, drafted by the businesses themselves, so as to ensure "fair competition." The Supreme Court found that, since the law sets no explicit guidelines, businesses "may roam at will and the President may approve or disapprove their proposal as he may see fit." Thus, they struck down the relevant provisions of the Recovery Act.
In the 1989 case Mistretta v. United States
Mistretta v. United States
Mistretta v. United States, 488 U.S. 361 , is a case decided by the United States Supreme Court.-Background:John Mistretta, who sold cocaine, argued that the sentencing guidelines he was facing were unconstitutional due to a gross distribution of authority by Congress resulting in a violation of...
, the Court stated that:
Only rarely has the Supreme Court invalidated laws as violations of the nondelegation doctrine. Exemplifying the Court's legal reasoning on this matter, it ruled in the 1998 case Clinton v. City of New York
Clinton v. City of New York
Clinton v. City of New York, , is a legal case in which the Supreme Court of the United States ruled that the line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United...
that the Line Item Veto Act of 1996
Line Item Veto Act of 1996
The Line Item Veto Act of 1996 enacted a line-item veto for the Federal government of the United States, but its effect was brief due to judicial review....
, which authorized the President to selectively void portions of appropriation bill
Appropriation bill
An appropriation bill or running bill is a legislative motion which authorizes the government to spend money. It is a bill that sets money aside for specific spending...
s, was a violation of the Presentment Clause
Presentment Clause
The Presentment Clause of the United States Constitution outlines federal legislative procedure by which bills originating in Congress become federal law in the United States.-Text:...
, which sets forth the formalities governing the passage of legislation. Although the Court noted that the attorneys prosecuting the case had extensively discussed the nondelegation doctrine, the Court declined to consider that question. However, Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, in a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, wrote that he would have found the statute to violate the exclusive responsibility for laws to be made by Congress.
See also
- Whitman v. American Trucking Associations, Inc.Whitman v. American Trucking Associations, Inc.Whitman v. American Trucking Associations, Inc., , was a case decided by the United States Supreme Court in which the Environmental Protection Agency's National Ambient Air Quality Standard for regulating ozone and particulate matter was challenged by the American Trucking Association along with...
- Amalgamated Meat Cutters v. ConnallyAmalgamated Meat Cutters v. ConnallyAmalgamated Meat Cutters v. Connally, 337 F.Supp. 737 is a court case decided by the United States District Court for the District of Columbia relating to the limits of the nondelegation doctrine. The district court upheld the delegation of legislative power to the executive branch that was...
- Chevron deference
External links
- “The Role of Congress in Monitoring Administrative Rulemaking” − Testimony of Jerry Taylor, Cato Institute, before the Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, September 12, 1996. http://www.cato.org/testimony/ct-jt091296.html
- “The Delegation Doctrine”, Madelon Lief, Wisconsin Legislative Reference Bureau, January 2004, Vol. IV, No. 1. http://www.legis.state.wi.us/lrb/pubs/consthi/04consthiIV1.htm
- “The Recent Controversy Over the Non Delegation Doctrine”, Jeffrey Bossert Clark, 2001. http://www.fed-soc.org/Publications/practicegroupnewsletters/environmentallaw/controversyenvv3i2.htm
- "Hot Oil and Hot Air: The Development of the Nondelegation Doctrine through the New Deal, a History 1813-1944," Andrew J. Ziaja, 35 Hastings Const. L.Q. 921 (2008). http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hascq35&div=36&id=&page=