Chapter 2
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The Delegation Doctrine
Just History – So Far
This played out during the mid-1930s
when Congress created several new
agencies to fight the Depression.
The Switch in Time that Saved Nine.
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Learning Objectives – Delegation Doctrine
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Why did this become an issue in the 1930s?
What were the delegations that the Court was
concerned with?
What would be the impact on government
function if the court had persisted in finding
delegations unconstitutional?
How did the court change its analysis of these
cases to solve the delegation issue?
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What is the Delegation Doctrine Problem?
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Can Congress delegate legislative or judicial
power to an executive branch agency?
 The Constitution is silent on this issue.
The United States Supreme Court initially found
such delegations to violate separation of powers
and struck down several pieces of New Deal
legislation.
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Shifting the Question
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Did Congress sufficiently direct the agency in the law
delegating the power so as to limit the agency’s
actions to those that would not violate separation of
powers?
The judicial review question:
 Does the statute provide enough guidance for the
court to review the agency actions to assure that
they comply with Congressional intent?
 The "intelligible principle" test.
This is all you need to know about the history
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"Intelligible Principle" - Rulemaking
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If the legislature does not provide an "intelligible
principle" to guide the court in reviewing agency
action, the courts will strike down the agency action
 Under the old version of the delegation doctrine,
the law was unconstitutional without regard to
whether there was sufficient guidance to the
agency.
Now the court will review the law and look for a
standard to review the agency’s actions.
 In practice, the court does not need to find much.
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What is an Intelligible Principle?
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Specific guidance is best
 Congress will provide very specific guidance if it
wants to limit agency discretion - the ADA
General/ambiguous guidance is also usually OK
 ‘‘in the public interest"
 Depends on whether context can provide meaning
 We will explore this in the Chevron and FDA
cigarette cases
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Delegation Doctrine - Adjudications
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Old test was public versus private rights
New Test (Commodity Futures Trading Commn. v. Schor, 478 U.S.
833 (1986)
 [1] “the extent to which the ‘essential attributes of judicial
power’ are reserved to Article III courts, and
 [2] conversely, the extent to which the non-Article III forum
exercises the range of jurisdiction and powers normally vested
only in Article III courts,
 [3] the origins and importance of the right to be adjudicated,
and
 [4] the concerns that drove Congress to depart from the
requirements of Article III.
Is the administrative law judge (ALJ) acting as an Article III judge?
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Judicial Review as a Check on Delegated
Powers
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There is a right of judicial review of rules to
determine if the agency has the legal authority to
issue them and if they properly supported by the
record.
There is a constitutional right to due process
protections in adjudications, and usually a right to
judicial review of the decision.
 As we will see, Congress can limit judicial
review in some circumstances.
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Practical Considerations
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The court is very unwilling to find adjudications exceed
constitutional authority under this test.
 This may be because Congress has not passed laws which test
the outer limits of agency authority
 There are state law fights over this - Wooley
There are limits on the transformation of criminal matters into
agency adjudications
 Traffic court can be civil, but only if there is no jail time
 Large civil fines push the edge, especially if there are also
criminal penalties for the same act
Administrative detentions are OK, but not for punishment
 Tuberculosis, denial of bail, mental health commitments
 Guantanamo Bay detentions are administrative
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