Permissible Delegations Legislation

Permissible Delegations Contingent Legislation

An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, the Congress passes contingent legislation. Under such legislation, Congress commands that, upon the finding of certain facts by an executive or administrative officer, a previously enacted statute be revived, suspended, or modified, or that a new rule be put into operation. Since the delegated function in such cases is not that of “filling up the details” of a statute, authority for it must be sought under some other theory.

More about Permissible Delegations Legislation

Contingent delegation was approved in an early case, The Brig Aurora,1 upholding the revival of a law upon the issuance of a presidential proclamation. 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 that 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.” 2

Permissible Delegations Legislation: Developments

The theory was used again in Field v. Clark,3 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 another country imposed duties or other exactions upon agricultural or other products of the United States that he deemed “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,” 4 and (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.” 5 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.6

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References

This text about Permissible Delegations Legislation is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] 11 U.S. (7 Cr.) 382 (1813).

[Footnote 2] 11 U.S. (7 Cr.) at 388.

[Footnote 3] 143 U.S. 649 (1892).

[Footnote 4] 143 U.S. at 691.

[Footnote 5] 143 U.S. at 692, 693.

[Footnote 6] J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

Tables of Contents

• Permissible Delegations Legislation and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Permissible Delegations Legislation and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)