Non-Delegation Doctrine
Rule
Congress may not delegate its core legislative power to another branch or private entity. A grant of rulemaking authority to an executive agency is constitutional only if Congress provides an “intelligible principle” to guide the agency’s exercise of the delegated power. J.W. Hampton, Jr. & Co. v. United States (1928).
Elements / Test
- Identify the statute and the power purportedly delegated.
- Ask whether Congress has laid down an intelligible principle: a standard, purpose, or set of factors that guides the agency and limits its discretion.
- Apply the modern formula: cite precedents in which similarly (or less) specific standards were upheld (National Broadcasting, Yakus, American Power & Light); compare the present case; conclude the delegation is constitutional.
- If no intelligible principle exists (Panama Refining; Schechter Poultry), the delegation is unconstitutional.
Exceptions
- Agency may use a narrowing construction to constrain its own discretion, but this does not retroactively cure an unconstitutional delegation at the time of enactment (Whitman v. American Trucking Associations).
- Conditional delegation (contingency clause): Congress may condition reinstating a rule on the President’s factual finding. Cargo of the Brig Aurora (1813).
- “Good year” exception: The doctrine has only struck down statutes in 1935 (Panama Refining, Schechter Poultry).
Policy
- Ensures democratic accountability: Congress, as the elected branch, must make fundamental policy choices.
- Prevents the executive from wielding unchecked legislative power.
- Counterarguments: modern regulatory complexity may require agencies with technical expertise to fill in details; intelligible principle standard is broad enough to uphold virtually any delegation since 1935.
Key Cases
- J.W. Hampton Jr. & Co. v. United States — established the “intelligible principle” test
- Panama Refining Co. v. Ryan — “hot oil” case; struck down delegation with no standard
- Schechter Poultry Corp. v. United States — “sick chicken” case; codes of fair competition too vague
- Mistretta v. United States — upheld Sentencing Commission despite broad authority
- Whitman v. American Trucking Associations — agency cannot cure an unconstitutional delegation by self-limiting