Delegation of Power

• Author: Sotirios A. Barber
• Pages: 760-761

Page 760

Early in American constitutional history the Supreme Court announced a rule that Congress could not delegate its power to the President or others. Yet the practical demands of an increasingly complex governmental environment have forced Congress to delegate, often quite broadly. The Court has rationalized all but a few delegations without abandoning the rule of nondelegation. This has been accomplished through successively more permissive formulations of the rule. Though the rule is in a state of desuetude, some revival is possible in the aftermath of the Court's invalidation of a LEGISLATIVE VETO in IMMIGRATION AND NATURALIZATION SERVICE V. CHADHA (1983).

A few commentators call the rule against delegations a judge-made doctrine lacking genuine constitutional status. This suggests the untenable proposition that genuine rules of constitutional law must be explicit in the constitutional document. Building on a COMMON LAW maxim against redelegation of delegated authority and on JOHN LOCKE'S observation that only the sovereign people can determine the legitimate location of legislative authority, most commentators have found nondelegation implicit in the SEPARATION OF POWERS and in concepts of representative government and DUE PROCESS OF LAW. The status of the rule thus secured, debate has concentrated on exactly what it prohibits.

As if the rule prohibited all delegations, nineteenth-century judges tried to reconcile it with the practical needs of government by denying that delegations in fact were delegations in law. In The Brig Aurora (1813) the Supreme Court held that Congress had not breached the rule by empowering the President to make factual finding on which the application of a previously declared congressional policy?an embargo?was contingent. In Wayman v. Southard (1825) the Court permitted a delegation to federal judges for "filling up the details" of part of the Federal Process Act of 1792. Though the rules announced in these cases were modest when stated in the abstract, the delegations themselves were the objects of acrimonious political conflict. By the early 1900s, power to declare facts and fill up details had become the foundation for the delegation of such discretionary authority to the President and administrative agencies as power to decide which grades of tea to exclude from import, to make rules regulating grazing on lands in national forests, and even to vary tariffs on imported goods.

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