Annotation 4 - Article I



Origin of the Doctrine of Nondelegability

''That the legislative power of Congress cannot be delegated is, of course, clear.'' 51 This 1932 statement has never been literally true, the delegation at issue in the very case in which the statement was made was upheld, and the Court in recent years has felt little constrained to much more than bow in the direction of the doctrine.Yet the doctrine of nondelegation of legislative powers and the permissible exception of delegation accompanied by standards have so settled a place in constitutional jurisprudence that notice must be given at some length. 52  

At least three distinct ideas contributed to the development of the doctrine that legislative power cannot be delegated. The first idea is the doctrine of separation of powers, the idea that the law-making power is vested in the legislative branch, the law-executing power in the executive branch, and the law-interpreting power in the judicial branch. 53 Is it not a violation of the doctrine to permit the law- making branch to divest itself of some of its power and confer it on one or the other of the other branches or to particular offices in the other branch?

The second idea is a due process conception precluding the transfer of regulatory functions to private persons, a distinct specie of the delegation doctrine not relevant usually in the field of administration, of delegation to another public agency. 54  

The third idea concerns the maxim ''delegata potestas non potest delegari,'' which John Locke borrowed from agency and offered as a principle of political science. 55 In J. W. Hampton, Jr., & Co. v. United States, 56 Chief Justice Taft explained the origin and limitations of this phrase as a postulate of constitutional law. ''The well-known maxim 'delegata potestas non potest delegari,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. . . . [I]n carrying out that constitutional division . . . it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power.''

But whatever the source or combination of sources of the doctrine, decisions of the Court accepting without comment delegations of vast powers to administrative or executive agencies constitute a de facto recognition that Congress in the exercise of its granted powers, in conjunction with its necessary and proper power, often cannot either foresee or resolve problems of application of general laws to specific situations. Thus, ''[d]elegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.'' 57  

Delegation Which Is Permissible

''It will not be contended,'' wrote Chief Justice Marshall in 1825, ''that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.'' 58 ''This is not to say,'' said Chief Justice Taft, ''that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it 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 governmental co-ordination.'' 59 Chief Justice Marshall frankly noted ''that there is some difficulty in discerning the exact limits'' on the legislative power to delegate. Thus, ''the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.'' 60  

Two theories suggested themselves to the early Court to justify the results of sustaining delegations. The Chief Justice alluded to the first in Wayman v. Southard. 61 He distinguished between ''important'' subjects, ''which must be entirely regulated by the legislature itself,'' and subjects ''of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.'' While his distinction may be lost, the theory of the power ''to fill up the details'' is impressively modern law.

A second theory, formulated even earlier, is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation. 62  

Filling Up the Details .--At issue in Wayman v. Southard 63 was the contention that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. 64 Chief Justice Marshall agreed that the rule-making power was a legislative function and that Congress could have formulated the rules itself, but he denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts. 65 Filling up the details of statutes was long a popular version of the nature of permissible delegations.

Thus, when Congress required the manufacturers of oleomargarine to have their packages ''marked, stamped and branded as the Commissioner of Internal Revenue . . . shall prescribe,'' the Court sustained the conviction of one selling his goods without the markings against his objection that he was prosecuted not for violation of law but for violation of a regulation. 66 ''The criminal offence,'' said Chief Justice Fuller, ''is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.'' 67 Kollock was not the first such case, 68 but it was to be followed by a multitude of delegations and the sustaining of them. Soon thereafter the Court on the same theory upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States. 69  

Contingent Legislation .--An entirely different problem arises when, instead of directing another department of govern ment to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended, or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of ''filling up the details'' of a statute, authority for it must be sought elsewhere than in the first theory. It is to be found in an even earlier case, The Brig Aurora, 70 where the revival of a law upon the issuance of a presidential proclamation was upheld. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that ''we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct.'' 71  

The theory was utilized again in Field v. Clark, 72 where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities ''for such time as he shall deem just'' if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions, which ''he may deem to be reciprocally unequal and unjust.'' In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents, which demonstrated that ''in the judgment of the legislative branch of the government, it is often desirable, if not essential, . . . to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations;'' 73 (2) that the act did ''not, in any real sense, invest the President with the power of legislation. . . . Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. . . . He had no discretion in the premises except in respect to the duration of the suspension so ordered.'' 74 By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President. 75  

The Effective Demise of the Nondelegation Doctrine

''[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.'' 76 The modern doctrine may be traced in its inception to the 1928 case in which the Court, speaking through Chief Justice Taft, upheld congressional delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries. 77 Although formally looking to the contingency theory, the Court's opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to ''common sense and the inherent necessities'' of the situation. 78 This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an ''intelligible principle'' to which the President or an agency must conform. 79  

The infirm state of the nondelegation doctrine was demonstrated further in Loving v. United States. Supp.1 Article 118 of the Uniform Code of Military Justice (UCMJ) Supp.2 provides for the death penalty for premedicated murder and felony murder for persons subject to the Act, but the statute does not comport with the Court's capital punishment jurisprudence, which requires the death sentence to be cabined by standards so that the sentencing authority is constrained to narrow the class of convicted persons to be so sentenced and to justify the individual imposition of the sentence. Supp.3 However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed. Supp.4  

The Court held that Congress could delegate to the President the authority to prescribe standards for the imposition of the death penalty--Congress' power under Article I, Sec. 8, cl. 14, is not exclusive--and that Congress had done so in the UCMJ by providing that the punishment imposed by a court-martial may not exceed ''such limits as the President may prescribe.'' Supp.5 Acknowledging that a delegation must contain some ''intelligible principle'' to guide the recipient of the delegation, the Court nonetheless held this not to be true when the delegation was made to the President in his role as Commander-in-Chief. ''The same limitations on delegation do not apply'' if the entity authorized to exercise delegated authority itself possesses independent authority over the subject matter. The President's responsibilities as Commander-in-Chief require him to superintend the military, including the courts-martial, and thus the delegated duty is interlinked with duties already assigned the President by the Constitution. Supp.6  

In the course of the opinion, the Court distinguished between its usual separation-of-powers doctrine--emphasizing arrogation of power by a branch and impairment of another branch's ability to carry out its functions--and the delegation doctrine, ''another branch of our separation of powers jurisdiction,'' which is informed not by the arrogation and impairment analyses but solely by the provision of standards, Supp.7 thus confirming what has long been evident that the delegation doctrine is unmoored to separation-of-powers principles altogether.

The Regulatory State .--Except for two Depression-era cases in which standards were found to be absent, the Court has never voided as impermissible a congressional delegation. 80 The now familiar pattern of regulation of important segments of the economy by boards or commissions, which combine in varying proportions the functions of all three departments of government, was first established by the States in the field of railroad rate regulation. Discovering that direct action was impracticable, the state legislatures created commissions to deal with the problem. One of the pioneers in this development was Minnesota, whose supreme court justified the practice in an opinion, which, with the implied 81 and later the explicit, 82 endorsement of the United States Supreme Court, practically settled the law on this point: ''If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic.'' 83 Contemporaneously, Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making power to the Commission, it has repeatedly affirmed rate orders issued by that agency. 84  

Breathtaking has been the breadth of delegations sustained. Congress has given the Interstate Commerce Commission the responsibility to approve railroad consolidations found to be in the ''public interest,'' 85 and conferred powers on the Federal Radio Commission 86 and the Federal Communications Commission 87 to license broadcasting stations as the ''public convenience, interest and necessity'' may require. In the field of communications still, the exercise of power by the FCC, pursuant to statute, to exert jurisdiction and authority over an industry that did not exist at the time Congress enacted the statute and that was unforeseen by Congress has been found to be valid. 88 The Supreme Court directed a regulatory agency acting under delegated powers to exercise its own judgment about whether competition or restraint would be in the public interest in the communications field rather than to attempt to extrapolate a principle favoring one or the other from the body of congressional law. 89  

The Court has upheld the delegation to the Federal Power Commission of authority to determine ''just and reasonable'' rates. 90 Agencies have been held properly to have received power to determine whether rates and charges were too high or excessive. 91 Regulation of corporate conduct has been extended to close supervision of activity. 92  

In Mistretta v. United States, 93 the Court approved congressional delegations to the Sentencing Commission, an independent agency in the judicial branch, to develop and promulgate guidelines binding federal judges and cabining their discretion in sentencing criminal defendants. Although the Court enumerated the standards Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, but it was forthright in stating that delegations may carry with them ''the need to exercise judgment on matters of policy.'' 94  

That this latter observation is indubitably true is revealed in many case results. Thus, the Court has upheld complex economic regulations of industries in instances in which the agencies had first denied possession of such power, had unsuccessfully sought authorization from Congress, and had finally acted without congressional guidance. 95 It has also recognized that when Administrations changes, new officials may have been conferred enough discretion so that they can change agency policies, often to a considerable degree, so that both previous and present agency policies may be consistent with congressional delegations. 96  

Despite some dicta to the contrary, it appears that there is no power Congress cannot delegate. ''[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.'' 97 Denying that it had ever suggested that the taxing power was nondelegable, the Court has placed that congressional authority on the same plane of permissible delegation. 98 Nor is there a problem with the fact that in exercising a delegated power the President or another officer may effectively suspend or rescind a law passed by Congress. A rule or regulation properly promulgated under authority received from Congress is law and under the supremacy clause of the Constitution can preempt state law, 99 and likewise it can supersede a federal statute. Early cases sustained giving the President upon the finding of certain facts to revive or suspend a law, 100 and the President's power to raise or lower tariff rates equipped him to alter statutory law. 101 Similarly, in Opp Cotton Mills v. Administrator, 102 Congress' decision to delegate to the Wage and Hour Administrator of the Labor Department the authority, after hearings and findings by an industry committee appointed by him, to establish a minimum wage in particular industries greater than the statutory minimum but no higher than a prescribed figure was sustained. Congress has not often expressly addressed the issue of repeals or supersessions, but in authorizing the Supreme Court to promulgate rules of civil and criminal proce dure and of evidence it directed that such rules supersede previously enacted statutes with which they conflicted. 103  

Recent concerns in the scholarly literature with respect to the scope of the delegation doctrine, 104 have been reflected within the judicial writings of some of the Justices. 105 Nonetheless, the Court's most recent decisions evidence no doubt of the constitutional propriety of very broad delegations, 106 and the practice will doubtlessly remain settled.

Standards .--Critical to the Court's explanations of the permissibility of legislative delegations has been the necessity of ''intelligible principles'' or ''standards'' to guide the agency or official in the performance of the task Congress has set. And indeed the only two instances in which the Court has found an unconstitutional delegation to another governmental agency have involved grants of discretion to administrators that the Court found to be unbounded. Thus, in Panama Refining Co. v. Ryan, 107 the President was authorized to prohibit the shipment in interstate commerce of ''hot oil''--oil produced in excess of state quotas. The statute was silent with regard to when and under what circumstances he should exercise the power and the Court, only Justice Cardozo dissenting, found that the stated policy of the legislation contained contrary directives. 108 While the grant of power in Panama Refining was narrow, the grant, in A.L.A. Schechter Poultry Corp. v. United States, 109 was sweeping. The National Industrial Recovery Act devolved on the executive branch the power to formulate codes of ''fair competition'' for all industry in order to promote ''the policy of this title.'' The policy was ''to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, . . . and otherwise to rehabilitate industry. . . .'' 110 Though much of the opinion is written in terms of the failure of these policy statements to provide meaningful standards, it seems more likely the Court was in fact concerned with the ''virtually unfettered'' discretion conferred on the President of ''enacting laws for the government of trade and industry throughout the country.'' 111  

This conclusion is bolstered by the Court's reversal of a lower federal court, which had literally applied the Schechter language to void a delegation to the Federal Home Loan Bank Commissioner of power to issue regulations for the appointment of conservators or receivers to take charge of banking associations. 112 The Act contained no standards, no declarations of policy, no guidance to the Commissioner. Nevertheless, the Court unanimously sustained the delegation. ''It may be,'' said Justice Jackson, ''that explicit standards . . . would have been a desirable assurance of responsible administration.'' 113 But while desirable, standards were not a constitutional necessity, since ''[t]he provisions are regulatory'' and deal with but one enterprise, banking, the problems of which are well known and the remedies authorized are as equally well known. ''A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields.'' 114  

Where the Court has determined that standards are necessary, it has been notably successful in finding them. Standards have been ascertained to exist in such formulations as ''just and reasonable,'' 115 ''public interest,'' 116 ''public convenience, interest, or necessity,'' 117 and ''unfair methods of competition.'' 118 Thus, in National Broadcasting Co. v. United States, 119 the Court found that the discretion conferred on the Federal Communications Commission to license broadcasting stations to promote the ''public interest, convenience, or necessity'' conveyed a standard ''as complete as the complicated factors for judgment in such a field of delegated authority permit.'' 120 Yet the regulations upheld were directed to the contractual relations between networks and stations and were designed to reduce the effect of monopoly in the industry, a policy on which the statute was silent. 121  

On the other hand, the standards may be set out in greater detail and with greater relevancy to the action taken but may in fact limit discretion not at all. In United States v. Rock Royal Co- operatives, 122 the Court sustained the delegation to the Secretary of Agriculture of the power to fix the prices of six commodities if and when he chose to exercise the power with regard to all or some of the commodities. The Act provided that the price to be fixed should afford farmers purchasing power equivalent to that they had enjoyed in a base period, but the Secretary was also to protect the interest of the consumer by a gradual increase in prices in accordance with the public interest and current consumption. The majority of the Court thought that the Act stated the purposes which Congress had hoped to achieve and set out standards by which it hoped the purposes could be realized.

Numerous delegations have been sustained by the Court in both war and peacetime which have vested in administrative agencies and executive officers vast powers over the economic life of the country. 123 By and large, however, the Court has paid scant atten tion to delegation as a constitutional issue in these circumstances. An exception is Arizona v. California, 124 in which a divided Court sustained the delegation of total discretion to the Secretary of the Interior to apportion water among the southwestern States in times of shortage. The statute prescribed no formula or standards, and the majority agreed that he was entirely free ''to choose among the recognized methods of apportionment or to devise reasonable methods of his own,'' 125 the Secretary being required to reach ''an informed judgment in harmony with the Act, the best interests of the Basin States, and the welfare of the Nation.'' 126 Three dissenters noted they had ''the gravest constitutional doubts'' about the delegation. 127  

Administrative implementation of the congressional enactment may well provide the intelligible standard. Thus, in Lichter v. United States, 128 the Court sustained the delegation of power to the War Department to recover ''excessive profits'' earned on war contracts. The first Act contained no definition, but the second defined ''excessive profits'' as meaning ''any amount of a contract or subcontract price which is found as a result of renegotiation to represent excessive profits.'' 129 The definition was essayed in the light of standards for determining ''excessiveness'' worked out by the War Department and in 1944 130 Congress specifically adopted these standards. Yet, the Court upheld the validity of the delegation as to proceeds earned prior to this 1944 adoption. ''The statutory term 'excessive profits,' in its context, was a sufficient expression of legislative policy and standards to render it constitutional.'' 131  

It seems therefore reasonably clear that the Court does not really require much in the way of standards from Congress. The minimum which the Court seems, but only sometimes, to insist on is that Congress employ a delegation which ''sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.'' 132 Where the congressional standards are combined with requirements of notice and hearing and statements of findings and considerations by the administrators, so that judicial review under due process standards is possible, the constitutional requirements of delegation have been fulfilled. 133 This requirement may be met through the provisions of the Administrative Procedure Act, 134 but where the Act is inapplicable or where the Court sees the necessity for exceeding the provisions, due process can supply the safeguards of required hearing, notice, supporting statements, and the like. 135  

Foreign Affairs .--That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was indicated in United States v. Curtiss-Wright Corp. 136 There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President was largely free of the constitutional constraints imposed by the nondelegation doctrine when he acted in foreign affairs. 137 The Curtiss-Wright doctrine has waxed and waned over the years, and the viability of this distinction is doubtful.

Delegations to the States .--From the beginning, Congress enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws. 138 Challenges to the practice were uniformly rejected. While the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose. 139 When, in the Selective Draft Law Cases, 140 the contention was made that the act was invalid because of its delegations of duties to state officers, the argument was rejected as ''too wanting in merit to require further notice.'' Congress continues to empower state officers to act, 141 and Presidents now object on grounds that the state officers, not having been appointed pursuant to the appointments clause, may not execute federal laws, rather than offer delegation arguments. 142  

Delegation to Private Persons .--Statutory delegations to private persons in the nature of contingency legislation have passed Court tests. Thus, statutes providing that restrictions upon the production or marketing of agricultural commodities are to become operative only upon a favorable vote by a prescribed majority of those persons affected have been upheld. 143 The rationale of the Court is that such a provision does not involve any delegation of legislative authority, since Congress has merely placed a restriction upon its own regulation by withholding its operation unless it is approved in a referendum. 144  

Less consistency has been displayed with regard to the more modern delegations. The Schechter case condemned the involvement of private trade groups in the drawing up of binding codes of competition in conjunction with governmental agencies. 145 In Carter v. Carter Coal Co., 146 the Court struck down the Bituminous Coal Conservation Act in part because the statute penalized persons who failed to observe minimum wage and maximum hour regulations drawn up by prescribed majorities of coal producers and coal employees. But earlier the Court had upheld a statute which delegated to the American Railway Association, a trade group, the authority to determine the standard height of draw bars for freight cars and to certify the figure to the Interstate Commerce Commission, which was required to accept it. 147 The Court simply cited Buttfield v. Stranahan, 148 in which it had sustained a delegation to the Secretary of the Treasury to promulgate minimum standards of quality and purity for imported tea, as a case ''completely in point'' and resolving the issue without need of further consideration. 149 Similarly, the Court had earlier still enforced statutes that gave legal effect to local customs of miners with respect to claims on public lands. 150  

The issue has remained muddled since Carter Coal, the Court having had no opportunity to attempt to reconcile the two lines of cases. 151  

Delegation and Individual Liberties .--It has been argued in separate opinions by some Justices that delegations by Congress of power to affect the exercise of ''fundamental freedoms'' by citizens must particularly be scrutinized to require the exercise of a congressional judgment about meaningful standards. 152 The only pronouncement in a majority opinion, however, is that even with regard to the regulation of liberty the standards of the delegation ''must be adequate to pass scrutiny by the accepted tests.'' 153 The standard practice, indeed, of the majority has been to interpret narrowly the delegation so as to avoid constitutional problems. 154  

Perhaps refining the delegation doctrine, at least in cases where Fifth Amendment due process interests are implicated, the Court held that a government agency charged with the efficient administration of the executive branch could not assert the broader interests that Congress or the President might have in barring lawfully resident aliens from government employment. The agency could assert only its own interests, and if the action could be justified by other interests the office with responsibility for promoting those interests must take the action. 155  

Punishment of Violations

If Congress so provides, violations of valid administrative regulations may be punished as crimes. 156 But the penalties must be provided in the statute itself; additional punishment cannot be imposed by administrative action. 157 In an early case, the Court held that a section prescribing penalties for any violation of a statute did not warrant a prosecution for wilful disobedience of regulations authorized by, and lawfully issued pursuant to, the act. 158 Without disavowing this general proposition, the Court, in 1944, upheld a suspension order issued by the OPA whereby a dealer in fuel oil who had violated rationing regulations was forbidden to receive or deal in that commodity. 159 Although such an order was not explicitly authorized by statute, it was sustained as being a reasonable measure for effecting a fair allocation of fuel oil, rather than as a means of punishment of an offender. In another OPA case, the Court ruled that in a criminal prosecution, a price regulation was subject to the same rule of strict construction as a statute, and that omissions from, or indefiniteness in, such a regulation, could not be cured by the Administrator's interpretation thereof. 160  


[Footnote 51] United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). See also Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

[Footnote 52] For particularly useful discussions of delegations, see 1 K. Davis, Administrative Law Treatise (St. Paul: 2d ed., 1978), Ch. 3; L. Jaffe, Judicial Control of Administrative Action (Boston: 1965), ch. 2.

[Footnote 53] Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

[Footnote 54] Carter v. Carter Coal Co., 298 U.S. 238, 310 -312 (1936). Since the separation-of-powers doctrine is inapplicable to the States as a requirement of federal constitutional law, Dreyer v. Illinois, 187 U.S. 71, 83 -84 (1902), it is the due process clause to which federal courts must look for authority to review the delegation by state legislatures of power to others which the legislature might have exercised directly. E.g., Eubank v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road District, 240 U.S. 242 (1916).

[Footnote 55] J. Locke, Second Treatise on Government (London: 1691), Ch. 11, 141.

[Footnote 56]   276 U.S. 394, 405 -406 (1928).

[Footnote 57] Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).

[Footnote 58] Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41 (1825).

[Footnote 59] J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

[Footnote 60] Id., 10 Wheat. (23 U.S.), 42.

[Footnote 61] Id., 41.

[Footnote 62] The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).

[Footnote 63]   23 U.S. (10 Wheat.) 1 (1825).

[Footnote 64] Act of May 8, 1792, Sec. 2, 1 Stat. 275, 276.

[Footnote 65] The power to promulgate rules of civil procedure was conferred by the Act of June 19, 1934, 48 Stat. 1064, now 28 U.S.C. Sec. 2072; the power to promulgate rules of criminal procedure was conferred by the Act of June 29, 1940, 54 Stat. 688, now 18 U.S.C. Sec. 3771. In both instances Congress provided for submission of the rules to it with the power presumably to change or to veto the rules. Additionally, Congress has occasionally legislated rules itself. E.g., 82 Stat. 197 (1968), 18 U.S.C. Sec. Sec. 3501-02 (admissibility of confessions in federal courts).

[Footnote 66] In re Kollock, 165 U.S. 526 (1897).

[Footnote 67] Id., 533.

[Footnote 68] United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835); Caha v. United States, 152 U.S. 211 (1894).

[Footnote 69] Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v. Grimaud, 220 U.S. 506 (1911) (executive officials to make rules governing use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 194 (1912) (prescribing methods of accounting for carriers in interstate commerce).

[Footnote 70]   11 U.S. (7 Cr.) 382 (1813).

[Footnote 71] Id., 388.

[Footnote 72]   143 U.S. 649 (1892).

[Footnote 73] Id., 691.

[Footnote 74] Id., 692, 693.

[Footnote 75] J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

[Footnote 76] Mistretta v. United States, 488 U.S. 361, 372 (1989). ''Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.'' Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).

[Footnote 77] J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

[Footnote 78] Id., 406.

[Footnote 79] Id., 409. The ''intelligible principle'' test of Hampton is the same as the ''legislative standards'' test of A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).

[Footnote 1 (1996 Supplement)] 116 S. Ct. 1737 (1996). The decision was unanimous in result, but there were several concurrences reflecting some differences among the Justices.

[Footnote 2 (1996 Supplement)] 10 U.S.C. Sec. Sec. 918(1), (4).

[Footnote 3 (1996 Supplement)] The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 (1972), and its progeny, to the military, 116 S. Ct. at 1742, a point on which Justice Thomas disagreed, id. at 1753.

[Footnote 4 (1996 Supplement)] Rule for Courts-Martial; see 116 S. Ct. at 1740, 1741-42.

[Footnote 5 (1996 Supplement)] 10 U.S.C. Sec. Sec. 818, 836(a), 856.

[Footnote 6 (1996 Supplement)] 116 S. Ct. at 1750-51.

[Footnote 7 (1996 Supplement)] Id. at 1743-44.

[Footnote 80] See Mistretta v. United States, 488 U.S. 361, 371 -379 (1989) (extensively reviewing doctrinal foundation and case law). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 -224 (1989); Touby v. United States, 500 U.S. 160, 164 -168 (1991).

[Footnote 81] The Court reversed the decision of the state supreme court on the grounds that the rates fixed by the commission were not subject to judicial review, a due process violation, but the opinion implicitly sanctioned the exercise of ratemaking powers by such bodies. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418 (1890).

[Footnote 82] J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

[Footnote 83] State v. Chicago, Milwaukee & St. Paul Ry. Co., 38 Minn. 288, 301, 37 N.W. 782, 788 (1888), revd, on other grounds, 134 U.S. 418 (1890).

[Footnote 84] ICC v. Louisville & Nashville R.R., 227 U.S. 88 (1913); New York v. United States, 331 U.S. 284, 340 -350 (1947), and cases cited. See also New York v. United States, 342 U.S. 882 (1951); American Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).

[Footnote 85] New York Central Securities Co. v. United States, 287 U.S. 12, 25 (1932).

[Footnote 86] Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933).

[Footnote 87] National Broadcasting Co. v. United States, 319 U.S. 190 (1943).

[Footnote 88] United States v. Southwestern Cable Co., 392 U.S. 157 (1968) (regulation of cable television under the 1934 Communications Act). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (approving promulgation of rules on the ''fairness doctrine'' and ''right to reply'' privilege in the absence of congressional enactment).

[Footnote 89] FCC v. RCA Communications, 346 U.S. 86 (1953).

[Footnote 90] FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).

[Footnote 91] Yakus v. United States, 321 U.S. 414 (1944) (wartime delegation to administrator to fix commodity prices that would be fair and equitable); Lichter v. United States, 334 U.S. 742 (1948) (wartime delegation to determine excessive profits by defense industries). See also Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.Supp. 737 (D.D.C. 1971) (three-judge court) (upholding imposition of nationwide price and wage controls by President upon general delegation).

[Footnote 92] American Light & Power Co. v. SEC, 329 U.S. 90 (1946) (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders).

[Footnote 93]   488 U.S. 361 (1989).

[Footnote 94] Id., 378.

[Footnote 95] E.g., Permian Basin Area Rate Cases, 390 U.S. 747 (1968); American Trucking Assns. v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).

[Footnote 96] Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842 -845, 865-866 (1984) (''[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments.'' Id., 865). See also Motor Vehicle Mfgrs. Assn. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 42 -44, 46-48, 51-57 (1983) (recognizing agency could have reversed its policy but finding reasons not supported on record).

[Footnote 97] Lichter v. United States, 334 U.S. 742, 778 -779 (1948).

[Footnote 98] Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989). In National Cable Television Ass. v. United States, 415 U.S. 336, 342 (1974), and FPC v. New England Power Co., 415 U.S. 345 (1974), the Court had appeared to suggest that delegation of the taxing power would be fraught with constitutional difficulties. How this conclusion could have been thought viable after the many cases sustaining delegations to fix tariff rates, which are in fact and law taxes, J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); and see FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (delegation to President to raise license ''fees'' on imports when necessary to protect national security), is difficult to discern. Nor should doubt exist respecting the appropriations power. See Synar v. United States, 626 F.Supp. 1374, 1385-1386 (D.D.C.) (three-judge court), affd. on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).

[Footnote 99] City of New York v. FCC, 486 U.S. 57, 63 -64 (1988); Louisiana PSC v. FCC, 476 U.S. 355, 368 -369 (1986); Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153 -154 (1982).

[Footnote 100] E.g., The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).

[Footnote 101] E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892).

[Footnote 102]   312 U.S. 126 (1941).

[Footnote 103] See 18 U.S.C. Sec. Sec. 3771, 3772 (criminal procedure); 28 U.S.C. Sec. 2072 (civil procedure); id., Sec. 2076 (evidence). In Davis v. United States, 411 U.S. 233, 241 (1973), the Court referred in passing to the supersession of statutes without evincing any doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100-702, 102 Stat. 4642, 4648, amending 28 U.S.C. Sec. 2072, the House would have altered supersession, the Senate disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H.Rept.No. 100-889, 100th Cong., 2d sess. (1988), 27-29; 134 Cong Rec. 23573-23584 (1988); Id., 31051-31052 (Sen. Heflin); Id., 31872 (Rep. Kastenmeier).

[Footnote 104] E.g., A Symposium on Administrative Law: Part I - Delegation of Powers to Administrative Agencies, 36 Amer. U. L. Rev. 295 (1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223 (1985); Aranson, Gellhorn & Robinson, A Theory of Legislative Delegation, 68 Corn. L. Rev. 1 (1982).

[Footnote 105] American Textile Mfgrs. Inst. v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607, 671 (1980) (then-Justice Rehnquist concurring). See also United States v. Midwest Video Corp., 406 U.S. 649, 675 , 677 (1972) (Chief Justice Burger concurring, Justice Douglas dissenting); Arizona v. California, 373 U.S. 546, 625 -626 (1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Dept., supra, 645-646 (plurality opinion); National Cable Television Assn. v. United States, 415 U.S. 336, 342 (1974).

[Footnote 106] E.g., Mistretta v. United States, 488 U.S. 361, 371 -379 (1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220 - 224 (1989); Touby v. United States, 500 U.S. 160, 164 -168 (1991). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, supra, 415-416, conceded both the inevitability of delegations and the inability of the courts to police them.

[Footnote 107]   293 U.S. 388 (1935).

[Footnote 108] It is not without note that the Court, in the view of many observers, was influenced heavily by the fact that the President's orders were nowhere published and notice of regulations bearing criminal penalties for their violations was spotty at best. Cf. E. Corwin, The President--Office and Powers 1787-1957 (New York: 4th ed. 1958), 394- 395. The result of the Government's discomfiture in Court was enactment of the Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C. Sec. 301, providing for publication of Executive Orders and agency regulations in the daily Federal Register.

[Footnote 109]   295 U.S. 495 (1935).

[Footnote 110] 48 Stat. 195 (1933), Tit. I, Sec. 1.

[Footnote 111] 295 U.S., 541-542.

[Footnote 112] Fahey v. Mallonee, 332 U.S. 245 (1947).

[Footnote 113] Id., 250.

[Footnote 114] Ibid. Indeed, the Court has frequently deprecated the broader holdings of the two cases by pointing out that Panama Refining criminalized acts not previously punishable offenses and that Schechter involved delegations to private individuals. Mistretta v. United States, 488 U.S. 361, 373 n. 7 (1989).

[Footnote 115] Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930).

[Footnote 116] New York Central Securities Corp. v. United States, 287 U.S. 12 (1932).

[Footnote 117] Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933).

[Footnote 118] FTC v. Gratz, 253 U.S. 421 (1920).

[Footnote 119]   319 U.S. 190 (1943).

[Footnote 120] Id., 216.

[Footnote 121] Similarly, the promulgation by the FCC of rules creating a ''fairness doctrine'' and a ''right to reply'' rule has been sustained, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as well as a rule requiring the carrying of anti-smoking commercials. Banzhaf v. FCC, 405 F.2d 1082 (D.C.Cir. 1968), cert. den. sub nom., Tobacco Institute v. FCC, 396 U.S. 842 (1969).

[Footnote 122]   307 U.S. 533 (1939).

[Footnote 123] Intermountain Rate Cases, 234 U.S. 476 (1914); American Trucking Assns. v. United States, 344 U.S. 298 (1953); FCC v. RCA Communications, 346 U.S. 86 (1953): Yakus v. United States, 321 U.S. 414 (1944). When in the Economic Stabilization Act of 1970, Congress authorized the President ''to issue such orders and regulations as he may deem appropriate to stabilize prices, rents, wages, and salaries,'' and the President complied with broad national controls, the lower court decision sustaining the action was not even appealed to the Supreme Court. Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 737 (D.D.C. 1971) (three-judge court).

[Footnote 124]   373 U.S. 546 (1963).

[Footnote 125] Id., 593.

[Footnote 126] Id., 594.

[Footnote 127] Id., 625.

[Footnote 128]   334 U.S. 742 (1948).

[Footnote 129] Sec. 403(a)(4) of the Act, as added by Tit. 8 of the Act of October 21, 1942, 56 Stat. 798, 982.

[Footnote 130] Sec. 403(a)(4) of the Act, as amended by Tit. 7 of the Act of February 25, 1944, 58 Stat. 21, 78.

[Footnote 131] 334 U.S., 783.

[Footnote 132] Yakus v. United States, 321 U.S. 414, 425 (1944).

[Footnote 133] Id., 426; Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 (1989); American Power Co. v. SEC, 329 U.S. 90, 107 , 108 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 144 (1941). It should be remembered that the Court has renounced strict review of economic regulation wholly through legislative enactment, forsaking substantive due process, so that review of the exercise of delegated power by the same relaxed standard forwards a consistent policy. E.g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

[Footnote 134] Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. Sec. Sec. 551- 559. In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), six Justices agreed that a Board proceeding had been in fact rule-making and not adjudication and that the APA should have been complied with. The Board won the particular case, however, because of a coalescence of divergent views of the Justices, but the Board has since reversed a policy of not resorting to formal rule-making.

[Footnote 135] E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v. Constantineau, 400 U.S. 433 (1971).

[Footnote 136]   299 U.S. 304, 312 (1936).

[Footnote 137] Id., 319-322. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291 -292 (1981). This view also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926).

[Footnote 138] See Warren, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev. 545 (1925); Holcomb, The States as Agents of the Nation, 3 Selected Essays on Constitutional Law (1938), 1187.

[Footnote 139] Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861). The last doubt as to compulsion was not definitively removed until Puerto Rico v. Branstad, 483 U.S. 219 (1987).

[Footnote 140]   245 U.S. 366, 389 (1918).

[Footnote 141] E.g., P.L. 94-435, title III, 90 Stat. 1394, 15 U.S.C. Sec. 15c (state attorneys general may bring antitrust parens patriae actions); Medical Waste Tracking Act, P.L. 100-582, 102 Stat. 2955, 42 U.S.C. Sec. 6992f (States may impose civil and possibly criminal penalties against violators of the law).

[Footnote 142] See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President Reagan). The only judicial challenge to such a practice resulted in a rebuff to the presidential argument. Seattle Master Builders Assn. v. Pacific Northwest Electric Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986), cert. den., 479 U.S. 1059 (1987).

[Footnote 143] Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock Royal Co-operative, 307 U.S. 533, 577 (1939); Wickard v. Filburn, 317 U.S. 111, 115 -116 (1942); United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. den., 493 U.S. 1094 (1990).

[Footnote 144] Currin v. Wallace, 306 U.S. 1, 15 , 16 (1939).

[Footnote 145] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Schechter was predominantly a lack-of-standards case, but the Court more recently has recurred to the private delegation issue. Mistretta v. United States, 488 U.S. 361, 373 n. 7 (1989).

[Footnote 146]   298 U.S. 238 (1936). But compare Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940).

[Footnote 147] St. Louis, Iron Mt. & Southern Ry. Co. v. Taylor, 210 U.S. 281 (1908).

[Footnote 148]   192 U.S. 470 (1904).

[Footnote 149] 210 U.S., 287.

[Footnote 150] Jackson v. Roby, 109 U.S. 440 (1883); Erhardt v. Boaro, 113 U.S. 527 (1885); Butte City Water Co. v. Baker, 196 U.S. 119 (1905).

[Footnote 151] But see Schweiker v. McClure, 456 U.S. 188 (1982) (hearing officer appointed by private insurance carrier adjudicating Medicare claims); Association of Amer. Physicians & Surgeons v. Weinberger, 395 F.Supp. 125 (N.D.Ill.) (three-judge court) (delegation to Professional Standards Review Organization), affd. per curiam, 423 U.S. 975 (1975); Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) (Secretary required to adopt interim OSHA standards produced by private organization). Again, the Executive Branch objections to these kinds of delegations have involved appointments clause arguments, see supra, n.142, rather than delegation issues per se.

[Footnote 152] United States v. Robel, 389 U.S. 258, 269 (1967) (Justice Brennan concurring). The view was specifically rejected by Justices White and Harlan in dissent, id., 288-289, and ignored by the majority.

[Footnote 153] Kent v. Dulles, 357 U.S. 116, 129 (1958).

[Footnote 154] Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968). More recently, the Court has eschewed even this limited mode of construction. Haig v. Agee, 453 U.S. 280 (1981).

[Footnote 155] Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5-to-4 decision). The regulation was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted in 5 U.S.C. Sec. 3301 (app.), sustained in Vergara v. Hampton, 581 F. 2d 1281 (C. A. 7, 1978).

[Footnote 156] United States v. Grimaud, 220 U.S. 506 (1911). See also Touby v. United States, 500 U.S. 160 (1991).

[Footnote 157] L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944).

[Footnote 158] United States v. Eaton, 144 U.S. 677 (1892).

[Footnote 159] L.P. Steuart & Bro. v. Bowles, 322 U.S. 398 (1944).

[Footnote 160] M. Kraus & Bros. v. United States, 327 U.S. 614 (1946).

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