The separation of powers - Nondelegation doctrine

Learning Outcomes

After reading this article, you will be able to explain the nondelegation doctrine as it relates to the separation of powers, identify when Congress may delegate authority to agencies, distinguish the "intelligible principle" test, and recognize the constitutional limits on legislative delegation. You will be able to apply these principles to MBE-style questions and avoid common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the constitutional principles governing the separation of powers and the limits on delegating legislative authority. This article focuses your revision on:

• The separation of powers among the legislative, executive, and judicial branches.
• The nondelegation doctrine and its application to congressional delegation of power.
• The "intelligible principle" standard for permissible delegation.
• Judicial review of agency actions and the limits of delegated authority.
• The relationship between legislative delegation and administrative agencies.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Congress passes a statute authorizing an executive agency to "regulate in the public interest." The agency issues binding rules affecting private conduct. Is this delegation likely constitutional?
   1. Yes, if Congress provides an intelligible principle to guide the agency.
   2. Yes, because Congress may delegate any power it chooses.
   3. No, because Congress may never delegate legislative power.
   4. No, unless the agency is part of the legislative branch.
2. Which of the following best describes the nondelegation doctrine?
   1. Congress may not delegate any power to the executive branch.
   2. Congress may delegate legislative power only if it provides an intelligible principle to guide the delegate.
   3. Congress may delegate only judicial power.
   4. Congress may delegate power only to the President.
3. If Congress delegates authority to an agency without providing any standards or guidelines, what is the likely result?
   1. The delegation is valid if the agency acts reasonably.
   2. The delegation is invalid under the nondelegation doctrine.
   3. The delegation is valid if the President approves.
   4. The delegation is valid if the agency is part of the judiciary.

Introduction

The U.S. Constitution establishes a system of separation of powers, dividing government authority among the legislative, executive, and judicial branches. The nondelegation doctrine is a constitutional principle that limits Congress's ability to transfer its legislative power to other entities, especially executive agencies. This doctrine is rooted in the idea that lawmaking must remain with the legislature, but recognizes that Congress may authorize agencies to implement and enforce laws under certain conditions.

Key Term: Separation of Powers The constitutional division of government authority among the legislative, executive, and judicial branches to prevent concentration of power.

The Nondelegation Doctrine: Overview

The nondelegation doctrine holds that Congress may not delegate its legislative power to another branch or entity without providing adequate guidance. The doctrine is based on Article I, Section 1 of the Constitution, which vests "all legislative powers" in Congress. However, the Supreme Court has recognized that Congress may delegate authority to agencies if it provides an "intelligible principle" to guide the exercise of delegated power.

Key Term: Nondelegation Doctrine The constitutional rule that Congress may not delegate its legislative power to another branch or entity without providing sufficient guidance or standards.

The "Intelligible Principle" Test

Congress may delegate authority to executive agencies if it sets out an intelligible principle to guide the agency's actions. This means Congress must provide clear standards or goals for the agency to follow. The Supreme Court has upheld broad delegations as long as Congress specifies the general policy, the agency to apply it, and the boundaries of delegated authority.

Key Term: Intelligible Principle A clear standard or guideline provided by Congress to direct an agency's exercise of delegated authority.

Permissible Delegation: Examples

Congress may delegate authority to agencies to fill in details, make rules, or enforce laws, provided Congress sets out the policy and limits. For example, Congress may instruct an agency to regulate "in the public interest" or to set "fair and reasonable" rates, as long as the statute provides some direction.

Worked Example 1.1

Congress enacts a law authorizing the Environmental Protection Agency (EPA) to set air quality standards "to protect public health." The EPA issues detailed regulations limiting emissions from factories. Is this delegation constitutional?

Answer: Yes. Congress has provided an intelligible principle ("to protect public health") to guide the EPA's actions. The delegation is valid under the nondelegation doctrine.

Limits on Delegation

Congress may not delegate legislative power without providing any standards or guidance. If a statute gives an agency unlimited discretion to make law without any policy or boundaries, the delegation is unconstitutional. However, the Supreme Court has rarely invalidated statutes on this ground.

Worked Example 1.2

Congress passes a law stating, "The Secretary of Commerce may regulate the economy as he sees fit." The Secretary issues rules affecting all businesses. Is this delegation valid?

Answer: No. The statute provides no intelligible principle or standard to guide the Secretary's actions. The delegation is unconstitutional under the nondelegation doctrine.

Judicial Review and Agency Action

Courts may review whether Congress has provided an intelligible principle and whether an agency has acted within the scope of its delegated authority. If an agency exceeds its statutory mandate or acts without guidance, its actions may be struck down.

Key Term: Agency Action The exercise of authority by an executive agency under powers delegated by Congress, subject to judicial review for compliance with statutory limits.

Delegation to the Executive and Judicial Branches

Congress may delegate authority to the executive branch to implement and enforce laws, and in limited circumstances to the judiciary for rulemaking. However, Congress may not give executive or judicial officers purely legislative power without standards.

Exam Warning

The Supreme Court has upheld nearly all congressional delegations, striking down only a few statutes for lack of an intelligible principle. Do not assume that broad delegations are automatically unconstitutional—focus on whether Congress provided any standard or policy.

Revision Tip

On the MBE, look for whether Congress has provided a policy, standard, or guideline to the agency. If so, the delegation is likely valid. If not, the delegation is likely invalid.

Key Point Checklist

This article has covered the following key knowledge points:

• The separation of powers divides authority among the legislative, executive, and judicial branches.
• The nondelegation doctrine limits Congress's ability to delegate legislative power.
• Congress may delegate authority if it provides an intelligible principle to guide the delegate.
• The Supreme Court rarely strikes down statutes for improper delegation.
• Judicial review ensures agencies act within the scope of delegated authority.

Key Terms and Concepts

• Separation of Powers
• Nondelegation Doctrine
• Intelligible Principle
• Agency Action