Line-drawing arguments concerning the nondelegation doctrine

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## Contents

* 1 Defining legislative authority
* 1.1 Claim: Legislative authority is the power to fashion legally binding rules
* 1.2 Claim: Legislative authority is the power to vote in Congress
* 1.3 Claim: Legislative authority is the power to make laws
* 2 Permissible vs. impermissible delegations
* 2.1 Delegation lines drawn by the United States Supreme Court
* 2.1.1 Exploring the line between permissible and impermissible delegations: Wayman v. Southard
* 2.1.2 Identifying the underlying directive: intelligible principle test
* 2.2 Delegation lines drawn by the U.S. Constitution
* 2.3 Contingent legislation: identifying the line between implementation and regulation
* 2.3.1 Nondelegation challenges to contingent legislation
* 2.4 Rules vs. goals statutes: demarcating permissible and impermissible delegations
* 3 See also
* 4 Footnotes

See also: Taxonomy of arguments about the nondelegation doctrine and Nondelegation doctrine: a timeline

One of the main areas of inquiry and disagreement concerning to the nondelegation doctrine is how to draw the line between a legislative act that engages in permissible delegation versus one that crosses the line into impermissible delegation. This page presents the different ways that scholars and courts have distinguished between legislative statutes that confer permissible powers to an agency through delegations of authority and those that violate the nondelegation doctrine through impermissible delegations.

There are two main approaches to where and how to draw the line:

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: Defining legislative authority

* Claim: Legislative authority is the power to fashion legally binding rules
* Claim: Legislative authority is the power to vote in Congress
* Claim: Legislative authority is the power to make laws

2. Argument: Permissible vs. impermissible delegations

* Claim: Delegation lines drawn by the United States Supreme Court
* Claim: Delegation lines drawn by the U.S. Constitution
* Claim: Contingent legislation: identifying the line between implementation and regulation
* Claim: Rules vs. goals statutes: demarcating permissible and impermissible delegations

## Defining legislative authority[edit]

Scholars and legal practitioners have put forth disparate definitions of legislative authority in order to better understand what constitutes permissible and impermissible delegations. Below is a selection of definitions of legislative authority that aim to draw the lines surrounding legislative authority for the purposes of delegation analysis.

### Claim: Legislative authority is the power to fashion legally binding rules[edit]

* In Department of Transportation v. Association of American Railroads, Justice Clarence Thomas offered the following definition of legislative power: “[T]he core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make ‘law’ in the Blackstonian sense of generally applicable rules of private conduct. [...] the power to fashion legally binding rules is legislative.”[1]

Thomas' definition of legislative power asserts that the power to enact legally binding rules governing private conduct can only be exercised by the legislative branch.[1] Thus, the promulgation of legally binding regulations by executive agencies, according to Thomas, infringes on legislative authority.[1]

### Claim: Legislative authority is the power to vote in Congress[edit]

* In “Interring the Nondelegation Doctrine," administrative law scholars Eric Posner and Adrian Vermeule claim that Congress does not violate the nondelegation doctrine through delegations of power but only through delegations of a lawmaker’s vote in Congress.[2] Legislative authority, therefore, does not refer to the authority to make the laws but only the authority to cast a vote on proposed legislation.[2] They write, "[W]e agree that the Constitution bars the 'delegation of legislative power.'" They add, "In our view, however, the content of that prohibition is the following: Neither Congress nor its members may delegate to anyone else the authority to vote on federal statutes or to exercise other de jure powers of federal legislators. What we argue, in contradiction of the usual view, is that a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power."[2]

In this way, Posner and Vermeule's interpretation of the nondelegation doctrine circumvents line-drawing between permissible and impermissible delegations of authority and, instead, redefines legislative authority in non-delegable terms.[3]

### Claim: Legislative authority is the power to make laws[edit]

* In "Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated," administrative law scholars Larry Alexander and Saikrishna Prakash respond to Posner and Vermeule's definition of legislative authority by revisiting nondelegation principles put forth by political theorists.[3] The authors cite the work of historical scholars, including John Locke, to defend their definition of legislative authority as the power to make laws rather than the power to cast a vote.[3] They write, “[W]e think that Posner and Vermeule too quickly reject the conventional reading of Locke’s nondelegation principle."[3] They add, "Their revisionist reading simply cannot make sense of Locke’s repeated claims that only those whom the people have appointed as legislators can make rules for the people.”[3]

## Permissible vs. impermissible delegations[edit]

Below is a selection of approaches to drawing the line between permissible and impermissible delegations. The following approaches have been compiled from legal opinions by the United States Supreme Court, existing legislative practices, and analysis by administrative law scholars.

### Delegation lines drawn by the United States Supreme Court[edit]

#### Exploring the line between permissible and impermissible delegations: Wayman v. Southard[edit]

Wayman v. Southard (1825) was one of the first cases to explore the limits of congressional delegations of power and solidified the right of Congress to delegate power to other federal entities. The United States Supreme Court held that Congress' delegation of authority to create federal court procedures to the federal courts themselves did not represent an unconstitutional delegation of legislative power.

In the case opinion, Chief Justice John Marshall explores the line between permissible and impermissible delegations, stating that Congress cannot delegate powers that "are strictly and exclusively legislative."[4] It may only delegate "powers which [it] may rightfully exercise itself."[4] He further observed that the line between delegable and non-delegable powers is inherently blurred: "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily."[5][4]

#### Identifying the underlying directive: intelligible principle test[edit]

Writing for the court in J.W. Hampton Jr. & Company v. United States (1928), Chief Justice William Howard Taft developed the intelligible principle test—a guiding principle that the United States Supreme Court continues to reference in determining the constitutionality of congressional delegations of authority.[6] Taft stated that Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform," and concluded that "such legislative action is not a forbidden delegation of legislative power."[6] In this way, Taft's intelligible principle test aims to draw a line between authorized and unauthorized delegations of power by identifying the underlying intelligible principle that directs each delegation.[7][6]

### Delegation lines drawn by the U.S. Constitution[edit]

Scholars have argued that congressional delegations of authority are contrary to the Vesting Clauses of the United States Constitution. These clauses vest legislative, executive, and judicial authority in their respective branches of government. Legislative power, in particular, is vested in Congress through Article 1, Section 1 of the U.S. Constitution. The clause states that “[a]ll legislative powers herein granted shall be vested in a Congress.”[5]

Administrative law scholar Gary Lawson claims that unconstitutional delegations of authority infringe on the lines put in place by the Constitution's Vesting Clauses.[5] He writes, “The Constitution clearly–and one must even say obviously–contemplates some such lines among the legislative, executive, and judicial powers. The vesting clauses, and indeed the entire structure of the Constitution, otherwise make no sense. The Constitution does not merely create the various institutions of the federal government; it vests, or clothes, those institutions with specific, distinct powers."[5]

### Contingent legislation: identifying the line between implementation and regulation[edit]

Contingent legislation is "legislation in which Congress conditions the force of the new law on a determination to be made by the President," according to attorney and scholar Robert Sarvis.[8] In other words, contingent legislation allows Congress to delegate authority to the president that the president can later exercise in response to certain triggering conditions stipulated in the legislation. Legislation that allows the president to adjust tariff rates is an example of contingent legislation. The United States Supreme Court first expressly permitted contingent legislation in Cargo of the Brig Aurora v. United States (1813).[5][8]

Contingent legislation "provides a wide range of contexts for delegation analysis," according to Lawson.[5] He writes, "The question is when, if ever, determination of those [trigger] events passes beyond the implementational function of executive and judicial agents and instead becomes lawmaking." Thus, Lawson identifies the line-drawing problem in cases of contingent legislation as a question of whether the executive branch serves to implement a legislatively enacted regulatory scheme or, instead, engages in independent lawmaking beyond the scope of executive authority.[5]

#### Nondelegation challenges to contingent legislation[edit]

The United States Supreme Court considered the following noteworthy challenges to contingent legislation on nondelegation grounds during the late 19th and early 20th centuries:

* Field v. Clark (1892): In Field v. Clark, Marshall Field & Company challenged the Tariff Act of 1890, arguing that it unconstitutionally delegated legislative power to the President.[9] The United States Supreme Court ruled unanimously that the legislation was constitutional since it only delegated discretionary power to the President.[9] "What the President was required to do was simply in execution of the act of Congress," stated Justice John Harlan in the opinion. "It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect."[5][9]

* J.W. Hampton Jr. & Company v. United States (1928): In J.W. Hampton Jr. & Company v. United States, J.W. Hampton Jr. & Company brought a claim against the constitutionality of the Tariff Act of 1922.[7] The plaintiff claimed that the president's authority to adjust import duties established by the act constituted an unconstitutional delegation of legislative power.[7] The United States Supreme Court held that Congress did not delegate legislative power to the executive because it provided the president with clear instructions on when and how to adjust the tariff rates established by the law.[7]

J.W. Hampton moved beyond Field v. Clark in terms of the analysis of contingent legislation, according to Lawson.[5] He wrote that the case allowed for a regulatory scheme "in which the President actually adjusts the tariff rates rather than merely determining whether pre-existing, congressionally-specified tariff schedules will take effect."[5] Thus, J.W. Hampton blurred the line between executive implementation of contingent legislation and independent regulatory activity on behalf of the president in response to a legislative contingency.[5]

### Rules vs. goals statutes: demarcating permissible and impermissible delegations[edit]

Law professor David Schoenbrod developed a distinction between what he refers to as rules statutes and goal statutes as a means to determine a statute's validity.[5] Rules statutes put forth specific rules of conduct to guide government entities charged with their implementation while goals statutes lay out broad policy goals without a specific plan to bring the policy into effect.[5] Schoenbrod stated, "[T]he statute itself must speak to what people cannot do; the statute may not merely recite regulatory goals and leave it to an agency to promulgate the rules to achieve those goals."[5]

Schoenbrod's distinction between rules and goals statutes aims to draw a line between legislation that puts forth permissible and impermissible delegations of authority.[5] According to Schoebrod's formulation, a rules statute clearly "demarcates permissible from impermissible conduct" and, therefore, constitutes a valid exercise of delegated authority. A goals statute, on the other hand, is an impermissible exercise of delegation because it does not sufficiently guide agencies through the implementation of a policy priority.[5]

## See also[edit]

* Search Google News for this topic
* Nondelegation doctrine
* Taxonomy of arguments about the nondelegation doctrine
* Ballotpedia's administrative state coverage

## Footnotes[edit]

1. ↑ 1.0 1.1 1.2 George Mason Law Review, "Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine," 2018
2. ↑ 2.0 2.1 2.2 University of Chicago Law Review, "Interring the Nondelegation Doctrine," 2002
3. ↑ 3.0 3.1 3.2 3.3 3.4 University of Chicago Law Review, "Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated," 2003
4. ↑ 4.0 4.1 4.2 Legal Information Institute, "The History of the Doctrine of Nondelegability," accessed November 27, 2018
5. ↑ 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 Virginia Law Review, "Delegation and Original Meaning," 2002
6. ↑ 6.0 6.1 6.2 Rowman & Littlefield Publishers, Inc., Summaries of Leading Cases on the Constitution, 50th Anniversary Edition, 2004
7. ↑ 7.0 7.1 7.2 7.3 Oyez, "J.W. Hampton, Jr. & Company v. United States," accessed October 30, 2017
8. ↑ 8.0 8.1 University of New Hampshire Law Review, "Legislative Delegation and Two Conceptions of the Legislative Power," June 2006
9. ↑ 9.0 9.1 9.2 FindLaw, Field v. Clark, accessed December 12, 2017

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* "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000)
* "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017)
* "Constitutionalism after the New Deal" by Cass R. Sunstein (1987)
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* "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002)
* "Rulemaking as Legislating" by Kathryn Watts (2015)
* "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016)
* "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017)
* "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007)
* "The Rise and Rise of the Administrative State" by Gary Lawson (1994)
* "The Study of Administration" by Woodrow Wilson (1887)
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