The authorization by Congress of a transfer of its lawmaking power to another branch of government.
The Supreme Court has been called on several times to address the controversial issue of when, if ever, Congress may transfer, or delegate, legislative power to the executive branch. The controversy is rooted in the text of the Constitution, whereby the people have delegated the authority to Congress to exercise “all legislative powers.” According to one view, any subsequent delegation of those powers by Congress is unconstitutional and may lead to undemocratic government by unelected, and unaccountable, administrators. For political and practical reasons, this so-called “nondelegation” view has been generally rejected by the Court. With rare, but notable, exceptions, the Court has allowed Congress to authorize executive branch agencies to make law in the form of rules and regulations and to allow the president to make the rules that the president is constitutionally charged to execute.
In early cases, the Court attempted to respect the principle of nondelegation even while acknowledging that, for practical reasons, the executive and judicial branches had to be allowed to share some of the federal government’s legislative responsibilities. Chief Justice John Marshall, writing for the Court in Wayman v. Southard
This ambivalence of the Court toward delegation continued into the twentieth century. As the responsibilities of the federal government grew, Congress created more administrative agencies and regulatory commissions to perform increasingly specialized tasks. The Federal Trade Commission (FTC), for example, was created by Congress to prohibit “unfair methods of competition.” In Federal Trade Commission v. Gratz
As part of a wide-ranging attack on the New Deal
In domestic affairs, the Court ruled in Yakus v. United States
In the 1980’s and 1990’s the Court continued to allow the delegation of legislative powers, but it signaled that it would impose some constitutional limits. In 1984 Congress chose to create an independent sentencing commission to generate mandatory sentencing guidelines. This commission was to be composed of seven members, three of whom were federal judges. The commission was challenged as an unconstitutional delegation of legislative power to the judicial branch, but the Court upheld its creation in Mistretta v. United States
Cann, Steven J. Administrative Law. 4th ed. Thousand Oaks, Calif.: Sage Publications, 2006. Hall, Kermit L. The Least Dangerous Branch: Separation of Powers and Court-Packing. New York: Garland, 2000. Lowi, Theodore. The End of Liberalism. 2d ed. New York: W. W. Norton, 1979. Powers, Stephen. The Least Dangerous Branch? Consequences of Judicial Activism. Westport, Conn.: Praeger, 2002. Warren, Kenneth F. Administrative Law in the Political System. 2d ed. Boulder, Colo.: Westview Press, 2004.
Clinton v. City of New York
Curtiss-Wright Export Corp., United States v.
Immigration and Naturalization Service v. Chadha
Mistretta v. United States
Schechter Poultry Corp. v. United States
Separation of powers