Nondelegation doctrine

The doctrine of nondelegation is 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 constitutions 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.

Australia

Australian federalism does not permit the federal Parliament or Government to delegate its powers to state or territorial parliaments or governments, nor territorial parliaments or governments to delegate their powers to the federal Parliament or Government, but the states parliaments delegate its powers to the federal parliament by means of section 51 subsection (xxxvii) of the Constitution Act 1901.

Canada

Canadian federalism does not permit Parliament or the provincial legislatures to delegate their powers to each other.

United States

In the Federal Government of the United States, the nondelegation doctrine is the theory 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 J. W. Hampton, Jr. & Co. v. United States (1928)[1] 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.'"[2]

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.

Case law

The origins of the nondelegation doctrine, as interpreted in U.S., can be traced back to, at least, 1690, when John Locke 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 in other hands.[3]

One of the earliest cases involving the exact limits of nondelegation was Wayman v. Southard (1825).[4] 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"[5] while holding that the tariff-setting authority delegated in the McKinley Act "was not the making of law," but rather empowered the executive branch to serve as a "mere agent" of Congress.[5]

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 granting the President the authority to prohibit the interstate shipment of petroleum in excess of certain quotas. 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,[6] the Court stated that:

Applying this "intelligible principle" test to congressional delegations, our 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. Accordingly, this Court has deemed it "constitutionally sufficient" if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

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 bills, 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.

See also

• Whitman v. American Trucking Associations, Inc.
• Amalgamated Meat Cutters v. Connally
• Chevron deference
• INS v. Chadha (1983)

References

1. "J. W. Hampton, Jr. & Co. v. United States". Justia US Supreme Court Center. April 9, 1928. 276 U.S. 394 (1928). Retrieved 2012-03-29.
2. Mistretta v. United States (1989), citing J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351(1928)
3. John Locke, Second Treatise of Civil Government (1690).
4. FindLaw.com Wayman v. Southard decision tesxt
5. FindLaw.com Field v. Clark decision text
6. Mistretta v. United States decision text

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.
• "The Delegation Doctrine", Madelon Lief, Wisconsin Legislative Reference Bureau, January 2004, Vol. IV, No. 1.
• "The Recent Controversy Over the Non Delegation Doctrine", Jeffrey Bossert Clark, 2001.
• "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).