From Non-Delegation to Full Delegation
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
Brig Aurora v U.S. (1813) – Pres. merely served as a factfinder 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
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.”
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 and his action is invalid.