Delegation of Power to Agencies

• Pages: 9-20
• Author: Richard J. Pierce, Jr.

9

Chapter 2

DELEGATION OF POWER

TO AGENCIES

Most age ncies have ma ny p owers, inc luding the pow er to

investigate, to prosecute, to require record -keeping and reporting,

and to publicize. The most important agency powers, however, are

the power to adjudicate disputes involving the rights of individuals

and the power to issue legally-binding rules of conduct. Both of those

agency powers have long existed under a cloud of constitutional

doubt.

A. Constitutional Limits on the Power to Delegate

Policymaking

Article I of the Constitution provides that “[a]ll legislative

powers shall be vested in a Congress of the United States.” For over

200 years, the Co urt has interpreted that provision to prohibit

Congress from delegating its legi slative power and has equat ed

legislative power with policymaking.

1

Thus, the non-delegation

doctrine purports to pro hibit Congress f rom d elegating to age ncies

the power to make legally-binding policy decisions. The doctrine fits

awkwardly in a legal system in which agencies make far more legally-

binding policy decisions than Congress.

The non-delegation doctrine does not follow inevitably from the

language of Article I. By its terms, the Constitution neither equates

legislative power with policymaking nor prohibits Congress from

delegating legislative power. Moreover, the first Congress enacted

two statutes that delegated the power to make legally-binding policy

decisions to other branches of government.

2

It seems unlikely that a

Congress dominated by Framers of the Constitution would

immediately act in a m anner inconsistent with the Constitution. No

Justice questione d the validity of the non-delegation doctrine until

2001, however, and a majority of the Court continues to reaffirm the

doctrine.

The Court’s application of the non-delegation doctrine has never

coincided with its descript ion of the doctrine. The Court has applied

the doctrine to invalidate only one statute, and it has upheld many

statutes that delegate to agencies the power to make legally-binding

1

Brig Aurora, 11 U.S. 382 (1813); Marshall Field & Co. v. Clark, 143 U.S. 649,

692 (1892).

2

I Stat. 83 (1789); I Stat. 137 (1789).