From Non-Delegation to Full Delegation

1. The philosophical problem with delegation: in a republic, laws are to be made by the elected representatives of the people, not unelected (and worse, unaccountable) officials • constitutional problem with delegation: Art. I, Sec. 1 “All legislative Powers herein granted shall be vested in a Congress . . . “ “The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they who have it, cannot pass it over to others.” Locke • Delegated power cannot itself be delegated (or ‘re-delegated’). • Delegata potestas non potest delegari From Non-Delegation to Full Delegation

2. Brig Aurora v U.S. (1813) – Pres. merely served as a fact-finder to trigger Congressional policy Field v Clark (1892) – ditto above holding U.S. v Grimauld (1911) – administrators have power to “fill up the details” of Congressional policy by establishing rules and regulations J.W. Hampton v U.S. (1928) – administrators have capacity to act as long as Congress “shall lay down an intelligible principle” to which they conform Schechter Poultry v U.S. & Panama Refining Co. v Ryan (1935) – only cases in U.S. history where Court (unanimously) held delegation unconstitutional since the Pres. had been granted “virtually unfettered” discretion to “enact laws for the government of trade and industry” Yakus v U.S. (1944) – upheld the Emergency Price Control Act of 1944 in the most sweeping delegation of power to that date and has never looked back since

3. From Non-Delegation to Full Delegation Arizona v California (1963) – upheld an extremely vague delegation of power to Sec. of Interior to use unlimited discretion to allocate waters of Colorado River “for river regulation,” for “domestic uses and satisfaction,” and “for power” National Cable Assoc. v U.S. (1974) – non-delegation doctrine was product of a bygone era and is as moribund as the substantive due process approach of that same era. Mistretta v U.S. (1989) – “Congress can not do its job absent an ability to delegate power under broad general directives.” [Note Scalia’s dissent] Whitman v American Trucking Assoc. (2001) – Scalia for the Court wrote that the broad grant of power to the EPA “fell within the outer limits of our non-delegation precedents.”

4. Setting the Limits for Delegation Does Congress have the power (under the Constitution) which it purports to delegate? If no, the matter is settled! If yes, proceed to next question. . . Did Congress provide “adequate statutory guidelines” for the administrative exercise of delegated powers? If no, the delegation is invalid;if yes, proceed to next query . . . Did the administrator act within the statutory guidelines? If yes, the agency prevails; if no, the administrator acted ultra vires andhis action is invalid.