In the
Federal Government of the United States, the
nondelegation doctrine is the theory that the
Congress of the United States, being vested with "all legislative powers" by
Article One, Section 1 of the
United States Constitution, 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 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 (FDA) is an agency in the
executive branch created by Congress with the power to regulate
food and
drugs in the United States. Congress has given the FDA a broad mandate to ensure the safety of the public and prevent
false advertising, 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 has been given the responsibility of collecting taxes that are assessed under the
Internal Revenue Code. 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 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. 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 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 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" 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. 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 that the
Line Item Veto Act of 1996, which authorized the President to selectively void portions of
appropriation bills, was a violation of the
Presentment Clause, 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, 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., •
Loving v. United States, •
Clinton v. City of New York, • ''
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, 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, some commentators argued that Congress overruled the Court by clarifying that
carbon dioxide 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, •
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