Permissible Delegations

The Nature and Scope of Permissible Delegations

The early Court suggested alternative theories to justify sustaining delegations. The first theory is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation.1 Chief Justice Marshall alluded to a second theory in Wayman v. Southard.2 There, 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 this distinction may now be lost, the theory of the power “to fill up the details” remains current.

More about Permissible Delegations

The early Court suggested alternative theories to justify sustaining delegations. The first theory is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation.1 Chief Justice Marshall alluded to a second theory in Wayman v. Southard.2 There, 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 this distinction may now be lost, the theory of the power “to fill up the details” remains current.

Permissible Delegations: Developments

A rigid application of separation of powers, however, would prevent the lawmaking branch from effectively utilizing the resources and expertise of the other branches. Thus, for instance, the doctrine has not been so rigidly applied as to prevent conferral of significant authority on the executive branch.5 In Loving v. United States,6 the Court distinguished between its usual separation-ofpowers doctrine&emdash;emphasizing arrogation of power by a branch and impairment of another branch's ability to carry out its functions&emdash; and the delegation doctrine, “another branch of our separation of powers jurisdiction,” which is informed not by arrogation and impairment analyses but solely by whether appropriate standards have been established by which delegations are to be exercised.7 This confirmed what had long been evident&emdash;that the delegation doctrine is unmoored from traditional separation-of-powers principles.

Other Aspects

The second principle underlying delegation law is due process. Under this doctrine, a delegation can be so arbitrary as to interfere with personal liberty and private property. Since federal separationof- powers doctrine is not applicable to delegations to non-federal actors, 8 it is the Due Process Clause alone to which federal courts must look when reviewing delegations to states or private entities. 9 Under a due process analysis, the Court will be more deferential when power is delegated to a rule-making entity, such as a public agency, because an agency is typically required to follow established procedures to build a public record and to explain its decisions. This enables a reviewing court to determine whether the agency has stayed within its ambit and complied with its legislative mandate.10 This is less likely to occur with delegations to private entities, which are typically not required to utilize such procedural safeguards as are expected when regulatory authority is exercised.11

Resources

References

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

[Footnote 1] The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).

[Footnote 2] 23 U.S. (10 Wheat.) 1, 41 (1825).

[Footnote 3] 276 U.S. 394 (1928).

[Footnote 4] 276 U.S. at 406. Chief Justice Taft traced the separation of powers doctrine to the maxim, Delegata potestas non potest delegari (a delegated power may not be further delegated), 276 U.S. at 405, but the maxim does not help differentiate between permissible and impermissible delegations, and Court has not repeated this reference in later delegation cases.

[Footnote 5] Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

[Footnote 6] 517 U.S. 748 (1996).

[Footnote 7] 517 U.S. at 758-59.

[Footnote 8] See, e.g., Dreyer v. Illinois, 187 U.S. 71, 83-84 (1902).

[Footnote 9] See, e.g., Eubank v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road Dist., 240 U.S. 242 (1916).

[Footnote 10] Yakus v. United States, 321 U.S. 414, 424-25 (1944).

[Footnote 11] Carter v. Carter Coal Co., 298 U.S. 238, 310-12 (1936).

Tables of Contents

• Permissible Delegations 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 and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)