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[case]Wayman v. Southard[Wayman v. Southard] (1825), distinguished powers that are “exclusively” legislative from those that are not and argued that Congress may let executive officials “fill up the details” of the nonexclusive powers. In 1892 the Court was asked to decide whether Congress could authorize the president to suspend trade with foreign countries when, in the president’s judgment, it was necessary. Asserting that it is a “universally recognized” principle that Congress cannot delegate legislative power to the president, the Court nevertheless upheld this delegation of legislative responsibility to the president.

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[case]Federal Trade Commission v. Gratz[Federal Trade Commission v. Gratz] (1920), the Court upheld this broad delegation of rule-making authority, as it did repeatedly in similar cases in this period. However, unwilling to completely abandon the principle that legislative power was not to be delegated, the Court crafted the doctrine that delegation was permitted as long as the Congress provides an “intelligible principle” to guide the exercise of delegated powers.

As part of a wide-ranging attack on the New DealNew Deal initiatives of President Franklin D. Roosevelt, the Court ruled in Schechter Poultry Corp. v. United States[case]Schechter Poultry Corp. v. United States[Schechter Poultry Corp. v. United States] (1935) that Congress had not supplied an intelligible principle when delegating legislative authority to the president and to the National Industrial Recovery Administration. After this exceptional case, however, the Court began to issue a succession of rulings validating the delegation of legislative power. In United States v. Curtiss-Wright Export Corp.[case]Curtiss-Wright Export Corp., United States v.[Curtiss-Wright Export Corp., United States v.] (1936), the Court held that Congress may delegate very broad foreign policy-making power to the president. By the end of the 1930’s, a politically weakened Court retreated from the intelligible principle standard, and Congress proceeded to spawn numerous administrative agencies and commissions to deal with the demands of an increasingly complex industrial nation.

In domestic affairs, the Court ruled in Yakus v. United States[case]Yakus v. United States[Yakus v. United States] (1944) that Congress could authorize an executive official, the price administrator, to set maximum prices on goods and services, guided only by the vague standard that the prices be “generally fair and equitable.” In Securities and Exchange Commission v. Chenery Corp.[case]Securities and Exchange Commission v. Chenery Corp.[Securities and Exchange Commission v. Chenery Corp.] (1947), the Court diluted the intelligible standard principle further by holding that as long as the administrators made a reasonable effort to acknowledge some limits to their discretionary power, the delegation was allowable. In 1970 Congress granted sweeping powers to the president to impose wage-and-price controls. Challenges to the Economic Stabilization Act of 1970 were rebuffed by the Court, even though the guidelines given by Congress to the president were stated in the most general of terms. By 1974 the Court was ready to declare, in National Cable Association v. United States[case]National Cable Association v. United States[National Cable Association v. United States], that the idea that there were meaningful limits on Congress’s authority to delegate power has been “virtually abandoned by the Court for all practical purposes.”

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[case]Mistretta v. United States[Mistretta v. United States] (1989). In Immigration and Naturalization Service v. Chadha[case]Immigration and Naturalization Service v. Chadha[Immigration and Naturalization Service v. Chadha] (1983), however, the Court ruled that the legislative veto, a procedure used by Congress to reassume rule-making authority after its delegation to an executive agency or official, was unconstitutional. In Bowsher v. Synar[case]Bowsher v. Synar[Bowsher v. Synar] (1986), the Court also denied Congress the ability to delegate to itself what the Court considered to be an executive power. In this case, the comptroller general was considered to be a legislative officer charged by Congress to perform an executive function, namely, to execute budget cuts. In Clinton v. City of New York[case]Clinton v. City of New York[Clinton v. City of New York] (1998), the Court ruled that Congress could not grant the president a line-item veto power whereby he could cancel selected items in spending bills.

• 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.

Administrative law

Clinton v. City of New York

Curtiss-Wright Export Corp., United States v.

Elastic clause

Immigration and Naturalization Service v. Chadha

Mistretta v. United States

New Deal

Schechter Poultry Corp. v. United States

Separation of powers