Nondelegation Doctrine
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The doctrine of nondelegation (or non-delegation principle) is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is
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or implicit in all written
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...
s that impose a strict structural
separation of powers The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...
. It is usually applied in questions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch. In the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
, the non-delegation principle refers to the ''
prima facie ''Prima facie'' (; ) is a Latin expression meaning "at first sight", or "based on first impression". The literal translation would be "at first face" or "at first appearance", from the feminine forms of ' ("first") and ' ("face"), both in the a ...
'' presumption that statutory powers granted to public bodies by
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
cannot be delegated to other people or bodies.


Australia

Australian federalism does not permit the federal Parliament or government to delegate its powers to state parliaments or governments. However, it does permit a state parliaments delegate its powers to the federal parliament by means of section 51(xxxvii) of the Australian Constitution.


Canada

Canadian federalism Canadian federalism () involves the current nature and historical development of the federal system in Canada. Canada is a federation with eleven components: the national Government of Canada and ten Provinces and territories of Canada, p ...
does not permit Parliament or the provincial legislatures to delegate their powers to each other. See: ''Attorney General of Nova Scotia v. Attorney General of Canada'',
951 Year 951 (Roman numerals, CMLI) was a common year starting on Wednesday of the Julian calendar. Events By place Europe * King Berengar II of Italy seizes Liguria, with help from the feudal lord Oberto I. He reorganizes the territorie ...
S.C.R. 31


United States

In the
Federal Government of the United States The Federal Government of the United States of America (U.S. federal government or U.S. government) is the Federation#Federal governments, national government of the United States. The U.S. federal government is composed of three distinct ...
, the nondelegation doctrine is the theory that the
Congress of the United States The United States Congress is the legislative branch of the federal government of the United States. It is a bicameral legislature, including a lower body, the U.S. House of Representatives, and an upper body, the U.S. Senate. They both ...
, being vested with "all legislative powers" by Article One, Section 1 of the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
, cannot delegate that power to anyone else. The scope of this restriction has been the subject of dispute. The Supreme Court ruled in '' J. W. Hampton, Jr. & Co. v. United States'' (1928) that congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch:
Eric Posner Eric Andrew Posner (; born December 5, 1965) is an American lawyer and legal scholar. As a law professor at the University of Chicago Law School, Posner has taught international law, contract law, and bankruptcy, among other areas. He is the son ...
and Adrian Vermeule in 2002 further argued that the restriction is only that the legislature cannot delegate the authority to vote on legislation or execute other ''de jure'' powers of the legislature. Further, they argue that the grant of power to the executive branch is never a transfer of legislative power but rather an exercise of legislative power. For example, the
Food and Drug Administration The United States Food and Drug Administration (FDA or US FDA) is a List of United States federal agencies, federal agency of the United States Department of Health and Human Services, Department of Health and Human Services. The FDA is respo ...
(FDA) is an agency in the
executive branch The executive branch is the part of government which executes or enforces the law. Function The scope of executive power varies greatly depending on the political context in which it emerges, and it can change over time in a given country. In ...
created by Congress with the power to regulate
food Food is any substance consumed by an organism for Nutrient, nutritional support. Food is usually of plant, animal, or Fungus, fungal origin and contains essential nutrients such as carbohydrates, fats, protein (nutrient), proteins, vitamins, ...
and
drugs A drug is any chemical substance other than a nutrient or an essential dietary ingredient, which, when administered to a living organism, produces a biological effect. Consumption of drugs can be via inhalation, injection, smoking, ingestio ...
in the United States. Congress has given the FDA a broad mandate to ensure the safety of the public and prevent
false advertising False advertising is the act of publishing, transmitting, distributing or otherwise publicly circulating an advertisement containing a false claim, or statement, made intentionally, or recklessly, to promote the sale of property, goods or servi ...
, but it is up to the agency to assess risks and announce prohibitions on harmful additives, and to determine the process by which actions will be brought based on the same. Similarly, the
Internal Revenue Service The Internal Revenue Service (IRS) is the revenue service for the Federal government of the United States, United States federal government, which is responsible for collecting Taxation in the United States, U.S. federal taxes and administerin ...
has been given the responsibility of collecting taxes that are assessed under the
Internal Revenue Code The Internal Revenue Code of 1986 (IRC), is the domestic portion of federal statutory tax law in the United States. It is codified in statute as Title 26 of the United States Code. The IRC is organized topically into subtitles and sections, co ...
. Although Congress has determined the amount of the tax to be assessed, it has delegated to the IRS the authority to determine how such taxes are to be collected. The nondelegation doctrine has been used in such cases to argue against the constitutionality of expanding bureaucratic power. Some scholars argue the nondelegation doctrine has proven popular in state courts, but with two exceptions in 1935, legal scholars argue that the doctrine is not evident in federal courts. This trend began to reverse due to the views of Chief Justice John Roberts, who joined Justice Gorsuch's dissenting opinion in '' Gundy v. United States''. In ''Gundy'', the Court upheld a provision of the Sex Offender Registration and Notification Act, authorizing the attorney general "to prescribe rules" concerning offenders who would have to register as sex offenders. However, Gorsuch argued that the statutory provision violated the nondelegation doctrine because it was not one of three exceptions to the nondelegation doctrine.


President vs. Congress

In his 2021 book ''Contested Ground'', Berkeley Law Professor Daniel Farber discusses the limits of presidential power in the United States. Throughout history, the doctrine of non-delegation has always been opposed to the unlimited exercise of power by the respective president. Already during his lifetime,
Abraham Lincoln Abraham Lincoln (February 12, 1809 – April 15, 1865) was the 16th president of the United States, serving from 1861 until Assassination of Abraham Lincoln, his assassination in 1865. He led the United States through the American Civil War ...
was denounced as a would-be dictator and the legality of his Civil War actions was questioned. Presidential power and its abuses have been in a special spotlight since
Watergate The Watergate scandal was a major political scandal in the United States involving the administration of President Richard Nixon. The scandal began in 1972 and ultimately led to Nixon's resignation in 1974, in August of that year. It revol ...
. President of both parties have tested the limits, i.e. Bush with his War on Terror, Obama with DACA, and Trump with his travel ban against Muslims in the first term or his worldwide tariffs in the second term.


Case law


Pre-1935

The origins of the nondelegation doctrine, as interpreted in U.S., can be traced back to at least 1690, when
John Locke John Locke (; 29 August 1632 (Old Style and New Style dates, O.S.) – 28 October 1704 (Old Style and New Style dates, O.S.)) was an English philosopher and physician, widely regarded as one of the most influential of the Enlightenment thi ...
wrote: One of the earliest cases involving the exact limits of nondelegation was ''Wayman v. Southard'' (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American statesman, jurist, and Founding Fathers of the United States, Founding Father who served as the fourth chief justice of the United States from 1801 until his death in 1835. He remai ...
conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details." In 1892, the Court in ''Field v. Clark'', 143 U.S. 649, noted "That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution"''Field v. Clark''
''FindLaw''.
while holding that the tariff-setting authority delegated in the McKinley Act "was not the making of law", but rather empowered the executive branch to serve as a "mere agent" of Congress.


1935

During the 1930s, Congress provided the executive branch with wide powers to combat the
Great Depression The Great Depression was a severe global economic downturn from 1929 to 1939. The period was characterized by high rates of unemployment and poverty, drastic reductions in industrial production and international trade, and widespread bank and ...
. The Supreme Court case of ''
Panama Refining v. Ryan ''Panama Refining Co. v. Ryan'', 293 U.S. 388 (1935), also known as the ''Hot Oil case'', was a case in which the US Supreme Court ruled that the Franklin Roosevelt administration's prohibition of interstate and foreign trade in petroleum goods pr ...
'', 293 U.S. 388 (1935) involved the
National Industrial Recovery Act The National Industrial Recovery Act of 1933 (NIRA) was a US labor law and consumer law passed by the 73rd US Congress to authorize the president to regulate industry for fair wages and prices that would stimulate economic recovery. It als ...
, which included a provision granting the
President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university *President (government title) President may also refer to: Arts and entertainment Film and television *'' Præsident ...
the authority to prohibit the interstate shipment of
petroleum Petroleum, also known as crude oil or simply oil, is a naturally occurring, yellowish-black liquid chemical mixture found in geological formations, consisting mainly of hydrocarbons. The term ''petroleum'' refers both to naturally occurring un ...
in excess of certain quotas. In the ''Panama Refining'' case, however, the Court struck down the provision on the ground that Congress had set "no criterion to govern the President's course". Other provisions of the National Industrial Recovery Act were also challenged. In '' Schechter Poultry Corp. v. United States'' (1935), the Supreme Court considered a provision which permitted the President to approve trade codes, drafted by the businesses themselves, so as to ensure "fair competition". The Supreme Court found that, since the law sets no explicit guidelines, businesses "may roam at will and the President may approve or disapprove their proposal as he may see fit". Thus, they struck down the relevant provisions of the Recovery Act.


Post-1935

In the 1989 case '' Mistretta v. United States'', the Court stated that: The Supreme Court has never found a violation of the nondelegation doctrine outside of ''Panama Refining'' and ''Schechter Poultry'' in 1935. Exemplifying the Court's legal reasoning on this matter, it ruled in the 1998 case ''
Clinton v. City of New York ''Clinton v. City of New York'', 524 U.S. 417 (1998), was a landmark decision by the Supreme Court of the United States in which the Court held, 6–3, that the line-item veto, as implemented in the Line Item Veto Act of 1996, violated the Pr ...
'' that the
Line Item Veto Act of 1996 The Line Item Veto Act was a federal law of the United States that granted the president the power to line-item veto budget bills passed by Congress. It was signed into law on April 9, 1996, but its effect was brief since it was ruled unconstit ...
, which authorized the President to selectively void portions of
appropriation bill An appropriation bill, also known as supply bill or spending bill, is a proposed law that authorizes the expenditure of government funds. It is a bill that sets money aside for specific spending. In some democracies, approval of the legislature ...
s, was a violation of the
Presentment Clause The Presentment Clause (Article I, Section 7, Clauses 2 and 3) of the United States Constitution outlines federal legislative procedure by which bills originating in Congress become federal law in the United States. Text The Presentment Clau ...
, which sets forth the formalities governing the passage of legislation. Although the Court noted that the attorneys prosecuting the case had extensively discussed the nondelegation doctrine, the Court declined to consider that question. However, Justice Kennedy, in a
concurring opinion In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the Majority opinion, majority of the court, but states different (or additional) reasons as the bas ...
, wrote that he would have found the statute to violate the exclusive responsibility for laws to be made by Congress.


Important cases

* '' Cargo of the Brig Aurora v. United States'', * '' Wayman v. Southard'', * '' Field v. Clark'', * '' Buttfield v. Stranahan'', * '' United States v. Grimaud'', * '' Mahler v. Eby'', * '' J. W. Hampton, Jr. & Co. v. United States'', * '' New York Central Securities Corp. v. United States'', * '' Panama Refining Co. v. Ryan'', * '' A.L.A. Schechter Poultry Corp. v. United States'', * '' Carter v. Carter Coal Co.'', * '' United States v. Curtiss-Wright Export Corp.'', * '' Currin v. Wallace'', * '' Sunshine Anthracite Coal Co. v. Adkins'', * '' OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor'', * '' National Broadcasting Co. v. United States'', * '' Yakus v. United States'', * '' Lichter v. United States'', * '' U.S. ex rel. Knauff v. Shaughnessy'', * '' National Cable Television Assn. v. United States'', * '' FPC v. New England Power Co.'', * '' Federal Energy Administration v. Algonquin SNG, Inc.'', * '' United States v. Batchelder'', * '' Industrial Union Department v. American Petroleum Institute'', * '' American Textile Mfrs. Inst., Inc. v. Donovan'', * '' Mistretta v. United States'', * '' Skinner v. Mid-America Pipeline Co.'', * '' Touby v. United States'', * ''
Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. ''Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.'', 501 U.S. 252 (1991), was a decision of the Supreme Court of the United States on the United States Constitution's separation of powers doctrine. Th ...
'', * '' Loving v. United States'', * ''
Clinton v. City of New York ''Clinton v. City of New York'', 524 U.S. 417 (1998), was a landmark decision by the Supreme Court of the United States in which the Court held, 6–3, that the line-item veto, as implemented in the Line Item Veto Act of 1996, violated the Pr ...
'', * '' Whitman v. American Trucking Ass'ns, Inc.'', * '' Department of Transportation v. Association of American Railroads'', * '' Coventry Health Care of Mo., Inc. v. Nevils'', * '' Gundy v. United States'', * '' Paul v. United States'', * '' Haaland v. Brackeen'', * '' SEC v. Jarkesy'', * '' FCC v. Consumers' Research'',


Major questions doctrine

The major questions doctrine is another doctrine that restricts Congressional delegation of legislative authority to agencies. It says that when a government agency seeks to decide an issue of "vast economic or political significance", a vague or general delegation of authority from Congress is not enough. Rather, the agency must have clear statutory authorization to decide the issue. The major questions doctrine served as an exception to the ''Chevron'' doctrine, which (until it was overturned in 2024) ordinarily required courts to defer to an agency's interpretation of a statute it enforces, so long as the statute is ambiguous and the agency's interpretation is reasonable. However, it went further than just negating deference to the agency. Even if the most reasonable interpretation of the statute allowed the agency to take an action, it would not be enough unless that delegation of authority is clearly stated. In explaining the major questions doctrine in '' UARG v. EPA'' (2014), the Supreme Court explained that "We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance'." Similarly, in '' Whitman v. American Trucking Associations'' (2001), the Court stated that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes." The Supreme Court first explicitly embraced the phrase "major questions doctrine" in '' West Virginia v. Environmental Protection Agency'' (2022), the decision which held that the EPA's
Clean Power Plan The Clean Power Plan was an Presidency of Barack Obama, Obama administration policy aimed at combating climate change that was first proposed by the United States Environmental Protection Agency, Environmental Protection Agency (EPA) in June 201 ...
, requiring energy producers to shift from fossil fuels to renewable sources, was not authorized by the Clean Air Act. With the
Inflation Reduction Act of 2022 The Inflation Reduction Act of 2022 (IRA) is a United States federal law which aims to reduce the federal government budget deficit, lower prescription drug prices, and invest in domestic energy production while promoting clean energy. It was ...
, some commentators argued that Congress overruled the Court by clarifying that
carbon dioxide Carbon dioxide is a chemical compound with the chemical formula . It is made up of molecules that each have one carbon atom covalent bond, covalently double bonded to two oxygen atoms. It is found in a gas state at room temperature and at norma ...
is one of the pollutants covered by the 1970 Clean Air Act. However, the Supreme Court had already held that greenhouse gasses are pollutants in '' Massachusetts v. EPA'' (2007), and the Supreme Court did not overrule that holding in ''West Virginia v. EPA''.


Important cases

* '' MCI Telecommunications Corp. v. AT&T Co.'', * '' FDA v. Brown & Williamson Tobacco Corp.'', * '' Gonzales v. Oregon'', * '' Utility Air Regulatory Group v. Environmental Protection Agency'', * '' King v. Burwell'', * '' Gundy v. United States'', ( Gorsuch, dissenting) ( dicta) * '' Alabama Assn. of Realtors v. Department of Health and Human Servs.'', * '' Biden v. Missouri'', * '' National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration'', * '' West Virginia v. EPA'', * '' Biden v. Nebraska'',


United Kingdom

In general, powers granted by
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
are presumed to only be exercisable by the body which is given those powers and can not be delegated. This is known as the "non-delegation principle" or the "presumption against delegation". For example, in '' Barnard v National Dock Labour Board'' 9532 QB 18, the
Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
held that the delegation of disciplinary powers originally granted to the London Dock Labour Board to the port manager was unlawful. In his judgment,
Lord Denning Alfred Thompson Denning, Baron Denning, (23 January 1899 – 5 March 1999), was an English barrister and judge. He was called to the Bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when he w ...
argued that the power of suspension was a judicial function. The dock labour board had to receive reports from employers and investigate them, they had to inquire whether the accused was guilty of misconduct, and they had to decide the appropriate disciplinary action to take. And as " judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication", the delegation of the disciplinary powers was held to be unlawful.


Exceptions to the non-delegation principle


Consultation as opposed to delegation

English courts have made a distinction between seeking consultation and the delegation of powers, the former of which is deemed to be permissible as decision making does not happen within an "institutional bubble". The important factor in deciding whether a public body is seeking consultation or whether they have delegated those powers is examining whether the powers are ultimately at the hands of the decision-maker in practice, as opposed to ''
de jure In law and government, ''de jure'' (; ; ) describes practices that are officially recognized by laws or other formal norms, regardless of whether the practice exists in reality. The phrase is often used in contrast with '' de facto'' ('from fa ...
''. In '' R (New London College) v Secretary of State for the Home Department'' 013UKSC 51, the
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
held that the
Home Secretary The secretary of state for the Home Department, more commonly known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom and the head of the Home Office. The position is a Great Office of State, maki ...
did not unlawfully delegate her powers to control entry into the UK to sponsoring institutions. Immigration rules dictated that all student visa applicants had to produce a " Confirmation of Studies" (CAS) which is produced by sponsoring institutions like
universities A university () is an educational institution, institution of tertiary education and research which awards academic degrees in several Discipline (academia), academic disciplines. ''University'' is derived from the Latin phrase , which roughly ...
. As part of the application process, institutions must make judgements whether they had an intention to study there. The Supreme Court rejected arguments that this was tantamount to the delegation of powers to sponsoring institutions.
Lord Sumption Jonathan Philip Chadwick Sumption, Lord Sumption, (born 9 December 1948), is a British author, medieval historian, barrister and former senior judge who sat on the Supreme Court of the United Kingdom between 2012 and 2018, and a Non-Permanen ...
, in his judgment, noted that "a significant number of Tier 4 (General) migrants with a CAS are in fact refused leave to enter or remain on these grounds". This, according to the Supreme Court, showed that the Home Secretary ''de facto'' exercised powers of final decision and therefore was merely consulting sponsoring institutions, not delegating her powers.


The ''Carltona'' doctrine

The ''Carltona'' doctrine (or ''Carltona'' principle) is the idea that when powers are granted to departmental officials, they can be lawfully delegated to their
civil servants The civil service is a collective term for a sector of government composed mainly of career civil service personnel hired rather than elected, whose institutional tenure typically survives transitions of political leadership. A civil service offic ...
.


See also

* '' Whitman v. American Trucking Associations, Inc.'' * '' Amalgamated Meat Cutters v. Connally'' * Chevron deference * ''INS v. Chadha'' (1983)


References


External links

* "The Role of Congress in Monitoring Administrative Rulemaking" − Testimony of Jerry Taylor,
Cato Institute The Cato Institute is an American libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Ed Crane, Murray Rothbard, and Charles Koch, chairman of the board and chief executive officer of Koch Industries.Koch ...
, before the Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, September 12, 1996

* "The Delegation Doctrine", Madelon Lief, Wisconsin Legislative Reference Bureau, January 2004, Vol. IV, No. 1

* "The Recent Controversy Over the Non Delegation Doctrine",
Jeffrey Clark Jeffrey Bossert Clark (born April 17, 1967) is an American lawyer who is Acting Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget. Clark was Assistant Attorney General for the Environment ...
, 2001

* "Hot Oil and Hot Air: The Development of the Nondelegation Doctrine through the New Deal, a History 1813-1944," Andrew J. Ziaja, 35 Hastings Const. L.Q. 921 (2008)

{{Law United States administrative law United States constitutional law Theories of constitutional interpretation Legal doctrines and principles