Non delegation doctrine and “quasi-constitutional” statutes

Introduction

• Under current doctrine, there are very few, if any, constitutional restraints on Congress’s power to delegate.

• Historical conventional understanding – that Congress is exclusive lawmaker – no longer reflects reality. In every industrialized nation, administrative agencies (part of executive branch) have been granted considerable lawmaking power.

• Possible reasons why Congress delegates broad discretionary power to administrative agencies:

• Administrators have necessary expertise

• Area changes rapidly

• Severe political costs to precise solutions of problems; no such costs attach if Congress merely identifies problem and asks administrators to solve it.

• Only an administrative agency staffed by experts and combining legislative, adjudicative, and executive authority has flexibility to engage in regulatory and redistributive activity necessary in a post-New Deal regulatory state.

• Constitutionality of broad delegations of discretionary power to administrative agencies.

• Some argue that such delegations violates original constitutional structure by allowing combination of legislative and executive power.

• Others argue there is no historical basis for this view, and that early congresses often delegated discretionary power to the executive.

• Our opinion here may depend on our position over extent to which government interference with “private” economic ordering is constitutionally permissible. Two views:

1. Framers created sharp divisions between legislative and executive authority in order to make such interference difficult.

2. Framers left questions about substantive ends of government to democratic processes.

Non-delegation doctrine

• Article I, by vesting legislative power in Congress, imposed constraints on Congress’s authority to delegate that power to others. This doctrine was thought to serve several functions:

• Ensured that fundamental policy choices would be made by legislature and not by officials w/in executive branch (less accountable).

• Promoted predictability for those benefited/burdened by regulation.

• Prevents arbitrariness on part of administrators by confining them to enforcement process.

Non-delegation and National Industrial Recovery Act of 1933 (NIRA)

NIRA sought to permit representatives of labor and management in each industry to design codes of “fair competition” in order to stabilize wages and prices. Following two cases are only decisions that invalidated federal statutes on non-delegation grounds in nation’s history.

Panama Refining Co. V. Ryan

• 1935. SC invalidated provision of NIRA authorizing president to prohibit, as part of petroleum code, transportation in interstate commerce of oil produced in violation of state-imposed production quotas. SC argued that statute did not supply standards that would tell president when to exercise power.

Schechter Poultry Corp. V. United States

• 1935. SC invalidated “live poultry code” which contained maximum hour and minimum wage provisions and prohibited various practices said to be “unfair methods of competition.” It is unconstitutional for Congress to delegate lawmaking authority regarding what constitutes “fair competition” to trade/industrial associations.