Separation of Powers & Checks & Balances
      The Theory Elaborated & Implemented
      Judicial Enforcement
Bicameralism
Enumerated, Implied, Resulting, & Inherent Powers
Delegation of Legislative Power
      Origin of the Doctrine of Nondelegability
          Delegation Which Is Permissible
          Filling Up the Details
          Contingent Legislation
      The Effective Demise of the Nondelegation Doctrine
          The Regulatory State
          Standards
          Foreign Affairs
          Delegations to the States
          Delegation to Private Persons
          Delegation and Individual Liberties
          Punishment of Violations
      Congressional Investigations
          Source of the Power to Investigate
          Investigations of Conduct of Executive Department
          Investigations of Members of Congress
          Investigations in Aid of Legislation
          Purpose
          Protection of Witnesses: Pertinency and Related Matters
          Protection of Witnesses: Constitutional Guarantees
      Sanctions of the Investigatory Power: Contempt

Section 2. The U.S. House of Representatives

Clause 1. Congressional Districting
      Elector Qualifications
Clause 2. Qualifications of Members of Congress
      When the Qualifications Must Be Possessed
      Exclusivity of Constitutional Qualifications
      Congressional Additions       State Additions
Clause 3. Apportionment of Seats in the House
      The Census Requirement
Clause 4. Vacancies
Clause 5. Officers and Power of Impeachment

Section 3. The U.S. Senate

Clause 1. Composition and Selection
Clause 2. Classes of Senators
Clause 3. Qualifications
Clause 4. The Vice President
Clause 5. Officers
Clause 6. Trial of Impeachments
Clause 7. Judgments on Impeachment

Section 4. Elections

Clause 1. Congressional Power to Regulate
      Federal Legislation Protecting the Electoral Process
Clause 2. Time of Assembling

Section 5. Special Powers & Duties of Each House of Congress

Clause 1. Power to Judge Elections
      "A Quorum to Do Business''
Clause 2. Rules of Proceedings
      Powers of the Houses Over Members
Clause 3. Duty to Keep a Journal
Clause 4. Adjournments

Section 6. Rights & Disabilities of Members of Congress

Clause 1. Compensation & Immunities

      Congressional Pay
      Privilege from Arrest
      Privilege of Speech or Debate
          Members
          Congressional Employees
Clause 2. Disabilities
      Appointment to Executive Office
      Incompatible Offices

Section 7. The Legislative Process

Clause 1. Revenue Bills
Clause 2. Approval by the President
      The Veto Power
Clause 3. Presentation of Resolutions
      The Legislative Veto

Section 8. Powers of Congress

Clause 1. Power to Tax and Spend
      Kinds of Taxes Permitted
          Decline of the Forbidden Subject Matter Test
          Federal Taxation of State Interests
          Scope of State Immunity from Federal Taxation
          Uniformity Requirement
      Purposes of Taxation
          Regulation by Taxation
          Extermination by Taxation
          Promotion of Business: Protective Tariffs
      Spending for the General Welfare
          Scope of the Power
      Social Security Act Cases
      An Unrestrained Federal Spending Power
      Conditional Grants-In-Aid
      Earmarked Funds
      Debts of the United States
Clause 2. Borrowing Power
Clause 3. Commerce Power
      Power to Regulate Commerce
          Purposes Served by the Grant of Power
          Definition of Terms
              Commerce
              Among the Several States
              Regulate
              Necessary and Proper Clause
              Federalism Limits on Exercise of Commerce Power
              Illegal Commerce
      Interstate versus Foreign Commerce
      Instruments of Commerce
      Congressional Regulation of Waterways
          Navigation
          Hydroelectric Power; Flood Control
      Congressional Regulation of Land Transportation
          Federal Stimulation of Land Transportation
          Federal Regulation of Land Transportation
          Federal Regulation of Intrastate Rates
          Federal Protection of Labor in Interstate Rail Transportation
          Regulation of Other Agents of Carriage an Communications
      Congressional Regulation of Commerce as Traffic
          The Sherman Act: Sugar Trust Case
          Sherman Act Revived
          The ``Current of Commerce'' Concept: The Swift Case
          The Danbury Hatters Case
          Stockyards and Grain Futures Acts
          Securities and Exchange Commission
      Congressional Regulation of Production and Industrial Relations:
      Antidepression Legislation
          National Industrial Recovery Act
          Agricultural Adjustment Act
          Bituminous Coal Conservation Act
          Railroad Retirement Act
          National Labor Relations Act
          Fair Labor Standards Act
          Agricultural Marketing Agreement Act
      Acts of Congress Prohibiting Commerce
          Foreign Commerce: Jefferson's Embargo
          Foreign Commerce: Protective Tariffs
          Foreign Commerce: Banned Articles
          Interstate Commerce: Power to Prohibit Questioned
          Interstate Commerce: National Prohibitions & State Police Power
          The Lottery Case
          The Darby Case: The Commerce Clause as a Source of National Police           Power
          Is There an Intrastate Barrier to Congress' Commerce Power?
          Civil Rights
          Criminal Law
      The Commerce Clause as a Restraint on State Powers
          Doctrinal Background
          The State Proprietary Activity Exception
          Congressional Authorization of Impermissible State Action
      State Taxation and Regulation: The Old Law
          General Considerations
          Taxation
          Regulation
      State Taxation and Regulation: The Modern Law
          General Considerations
          Taxation
          Regulation
      Foreign Commerce and State Powers
      Concurrent National and State Jurisdiction
          The General Issue: Preemption
              Preemption Standards
              The Standards Applied
              Federal Versus State Labor Laws
      Commerce With Indian Tribes
Clause 4. Naturalization and Bankruptcies
      Naturalization and Citizenship
          Nature and Scope of Congress' Power
          Categories of Citizens: Birth & Naturalization
          The Naturalization of Aliens
      Rights of Naturalized Persons
      Expatriation: Loss of Citizenship
      Aliens
          The Power of Congress to Exclude Aliens
          Deportation
      Bankruptcy
          Persons Who May Be Released from Debt
          Liberalization of Relief Granted and Expansion of the Rights of the Trustee
          Constitutional Limitations on the Bankruptcy Power
          Constitutional Status of State Insolvency Laws: Preemption
Clauses 5 and 6. Money
      Fiscal and Monetary Powers of Congress
          Coinage, Weights, and Measures
          Punishment of Counterfeiting
          Borrowing Power versus Fiscal Power
Clause 7. Post Offices
      Postal Power
          "Establish''
          Power to Protect the Mails
          Power to Prevent Harmful Use of the Postal Facilities
          Exclusive Power as an Adjunct to Other Powers
          State Regulations Affecting the Mails
Clause 8. Copyrights and Patents
      Copyrights and Patents
          Scope of the Power
          Patentable Discoveries
          Procedure in Issuing Patents
          Nature and Scope of the Right Secured
          Power of Congress over Patent Rights
          State Power Affecting Payments &Copyrights
          Trade-Marks and Advertisements
Clause 9. Creation of Courts
Clause 10. Maritime Crimes
      Piracies, Felonies, and Offenses Against the Law of Nations
          Origin of the Clause
          Definition of Offenses
          Extraterritorial Reach of the Power
Clauses 11, 12, 13, and 14. War; Military Establishment
      The War Powers
          Source and Scope
              Three Theories
              An Inherent Power
              A Complexus of Granted Powers
          Declaration of War
      The Power to Raise and Maintain Armed Forces
          Purpose of Specific Grants
          Time Limit on Appropriations for the Army
          Conscription
          Care of the Armed Forces
          Trial and Punishment of Offenses: Servicemen, Civilian Employees, & Dependents
              Servicemen
              Civilians and Dependents
      War Legislation
          War Powers in Peacetime
          Delegation of Legislative Power in Wartime
      Constitutional Rights in Wartime
          Constitution & the Advance of the Flag
              Theater of Military Operations
              Enemy Country
              Enemy Property
              Prizes of War
          The Constitution at Home in Wartime
              Personal Liberty
              Enemy Aliens
              Eminent Domain
              Rent and Price Controls
Clauses 15 and 16. The Militia
      The Militia Clause
          Calling Out the Militia
          Regulation of the Militia
Clause 17. District of Columbia; U.S. Government Property
      Seat of the National Government
      Authority Over Places Purchased
          "Places''
          Duration of National Jurisdiction
          Reservation of Jurisdiction by States
Clause 18. Necessary and Proper Clause
      Coefficient Clause, or Elastic Clause
          Scope of Incidental Powers
          Operation of Coefficient Clause
          Definition of Punishment and Crimes
          Chartering of Banks
          Currency Regulations
          Power to Charter Corporations
          Courts and Judicial Proceedings
          Special Acts Concerning Claims
          Maritime Law

Section 9. Powers Denied to Congress

Clause 1. Importation of Slaves
      General Purpose of Section 9
Clause 2. Habeas Corpus Suspension
Clause 3. Bills of Attainder and Ex Post Facto Laws
      Bills of Attainder
      Ex Post Facto Laws
          Definition
          What Constitutes Punishment
          Change in Place or Mode of Trial
Clause 4. Taxes
      Direct Taxes
          The Hylton Case
          From the Hylton to the Pollock Case
          Restriction of the Pollock Decision
          Miscellaneous
Clause 5. Duties on Exports from States
      Taxes on Exports
          Stamp Taxes
Clause 6. Preference to Ports
      The "No Preference'' Clause
Clause 7. Appropriations and Accounting of Public Money
      Appropriations
      Payment of Claims
Clause 8. Titles of Nobility; Presents

Section 10. Powers Denied to the States

Clause 1. Not to Make Treaties, Coin Money, Pass Ex Post Facto Laws, Impair                 Contracts
      Treaties, Alliances, or Confederations
      Bills of Credit
      Legal Tender
      Bills of Attainder
      Ex Post Facto Laws
          Scope of the Provision
          Denial of Future Privileges to Past Offenders
          Changes in Punishment
          Changes in Procedure
      Obligation of Contracts
          "Law'' Defined
          Status of Judicial Decisions
          "Obligation'' Defined           "Impair'' Defined
          Vested Rights Not Included
          Public Grants That Are Not ``Contracts''
          Tax Exemptions: When Not ``Contracts''
          "Contracts'' Include Public Contracts & Corporate Charters
          Corporate Charters: Different Ways of Regarding
          Reservation of Right to Alter or Repeal Corporate Charters
          Corporation Subject to the Law & Police Power
          Strict Construction of Charters, Tax Exemptions
          Strict Construction & the Police Power
          Doctrine of Inalienability as Applied to Eminent Domain, Taxing, &
          Police Powers
          Private Contracts
          Remedy a Part of the Private Obligation
          Private Contracts and the Police Power
          Evaluation of the Clause Today
Clause 2. Not to Levy Duties on Exports and Imports
      Duties on Exports and Imports
          Scope
          Privilege Taxes
          Property Taxes
          Inspection Laws
Clause 3. Not to Lay Tonnage Duties, Keep Troops, Make Compacts, or Engage in War
      Tonnage Duties
      Keeping Troops
      Interstate Compacts
          Background of Clause
          Subject Matter of Interstate Compacts
          Consent of Congress
          Grants of Franchise to Corporations by Two States
          Legal Effects of Interstate Compacts

SEPARATION OF POWERS & CHECKS AND BALANCES

NOTE:

NOTES:

[3] "In republican government the legislative authority, necessarily, predominates.'' The Federalist No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id., No. 48, 332-334. This theme continues today to influence the U.S. Supreme Court's evaluation of congressional initiatives. E.g., Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 S.Ct. 252, 273-2274, 277 (1991). But compare id., 286 n. 3 (Justice White dissenting).

[4]The intellectual history through the state period and the Federal Convention proceedings is detailed in G. Wood, The Creation of the American Republic, 1776-1787 (1969) .

The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally held: the separation of government into three branches -- legislative, executive, and judicial; the conception that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. To a great extent, the Constitution effectuated these principles, but critics objected to what they regarded as a curious intermixture of functions, to, for example, the veto power of the President over legislation and to the role of the Senate in the appointment of executive officers and judges and in the treaty-making process. It was to these objections that Madison turned in a powerful series of essays. [5]

NOTE:

Madison recurred to "the celebrated'' Montesquieu, the ``oracle who is always consulted,'' to disprove the contentions of the critics. ``[T]his essential precaution in favor of liberty,'' that is, the separation of the three great functions of government had been achieved, but the doctrine did not demand rigid separation. Montesquieu and other theorists ``did not mean that these departments ought to have no partial agency in, or controul over, the acts of each other,'' but rather liberty was endangered ``where the whole power of one department is exercised by the same hands which possess the whole power of another department.'' [6] That the doctrine did not demand absolute separation provided the basis for preservation of separation of powers in action. Neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient. [7] Instead, the security against concentration of powers ``consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.'' Thus, "[a]mbition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." [8]

NOTES:

[7] Ibid., Nos. 47-49, 325-343.

[8] Ibid., No. 51, 349.

Institutional devices to achieve these principles pervade the U.S. Constitution. Bicameralism reduces legislative predominance, while the presidential veto gives to the Chief Magistrate a means of defending himself and of preventing congressional overreaching. The Senate's role in appointments and treaties checks the President. The courts are assured independence through good behavior tenure and security of compensation, and the judges through judicial review will check the other two branches. The impeachment power gives to Congress the authority to root out corruption and abuse of power in the other two branches. And so on.

Throughout much of our history, the "political branches'' have contended between themselves in application of the separation-of-powers doctrine. Many notable political disputes turned on questions involving the doctrine. Inasmuch as the doctrines of separation of powers and of checks and balances require both separation and intermixture, [9] the role of the Supreme Court in policing the maintenance of the two doctrines is problematic at best. And, indeed, it is only in the last two decades that cases involving the doctrines have regularly been decided by the Court. Previously, informed understandings of the principles have underlain judicial construction of particular clauses or guided formulation of constitutional common law. That is, the nondelegation doctrine was from the beginning suffused with a separation-of-powers premise, [10] and the effective demise of the doctrine as a judicially-enforceable construct reflects the Court's inability to give any meaningful content to it. [11] On the other hand, periodically, the Court has essayed a strong separation position on behalf of the President, sometimes with lack of success, [12] sometimes successfully.

NOTES:

[10] E.g., Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).

[11] See Mistretta v. United States, 488 U.S. 361, 415-416 (1989) (Justice Scalia dissenting).

[12] The principal example is Myers v. United States, 272 U.S. 52 (1926), written by Chief Justice Taft, himself a former President. The breadth of the holding was modified in considerable degree in Humphrey's Executor v. United States, 295 U.S. 602 (1935), and the premise of the decision itself was recast and largely softened in Morrison v. Olson, 487 U.S. 654 (1988).

Following a lengthy period of relative inattention to separation of powers issues, the Supreme Court since 1976 [13] has recurred to the doctrine in numerous cases, and the result has been a substantial curtailing of congressional discretion to structure the national government. Thus, the Court has interposed constitutional barriers to a congressional scheme to provide for a relatively automatic deficit-reduction process because of the critical involvement of an officer with significant legislative ties, [14] to the practice set out in more than 200 congressional enactments establishing a veto of executive actions, [15] and to the vesting of broad judicial powers to handle bankruptcy cases in officers not possessing security of tenure and salary. [16] Contrarily, the highly-debated establishment by Congress of a process by which independent special prosecutors could be established to investigate and prosecute cases of alleged corruption in the Executive Branch was sustained by the Court in a opinion that may presage a judicial approach in separation of powers cases more accepting of some blending of functions at the federal level. [17]

NOTES:

[14] Bowsher v. Synar, 478 U.S. 714 (1986).

[15] INS v. Chadha, 462 U.S. 919 (1983)

. [16] Northern Pipeline Construction Co. v. Marathon Pipe Line Company, 458 U.S. 50 (1982).

[17] Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States, 488 U.S. 361 (1989).

Important as were the results in this series of cases, the development in the cases of two separate and inconsistent doctrinal approaches to separation of powers issues occasioned the greatest amount of commentary. The existence of the two approaches, which could apparently be employed in the discretion of the Justices, made difficult the prediction of the outcomes of differences over proposals and alternatives in governmental policy. Significantly, however, it appeared that the Court most often used a more strict analysis in cases in which infringements of executive powers were alleged and a less strict analysis when the powers of the other two Branches were concerned. The special prosecutor decision, followed by the decision sustaining the Sentencing Commission, may signal the adoption of a single analysis, the less strict analysis, for all separation of power cases or it may turn out to be but an exception to the Court's dual doctrinal approach. [18]

NOTE:

While the two doctrines have been variously characterized, the names generally attached to them have been `"formalist,'' applied to the more strict line, and "functional,'' applied to the less strict. The formalist approach emphasizes the necessity to maintain three distinct branches of government through the drawing of bright lines demarcating the three branches from each other determined by the differences among legislating, executing, and adjudicating. [19] The functional approach emphasizes the core functions of each branch and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions. Under this approach, there is considerable flexibility in the moving branch, usually Congress acting to make structural or institutional change, if there is little significant risk of impairment of a core function or in the case of such a risk if there is a compelling reason for the action. [20]

NOTES:

[20] CFTC v. Schor, 478 U.S. 833, 850-51, 856-57 (1986); Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568, 587, 589-93 (1985) . The Supreme Court had first formulated this analysis in cases challenging alleged infringments on presidential powers, United States v. Nixon, 418 U.S. 683, 713 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 442-43 (1977), but it had subsequently turned to the more strict test. Schor and Thomas both involved provisions challenged as infringing judicial powers.

Chadha used the formalist approach to invalidate the legislative veto device by which Congress could set aside a determination by the Attorney General, pursuant to a delegation from Congress, to suspend deportation of an alien. Central to the decision were two conceptual premises. First, the action Congress had taken was legislative, because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the legislative branch of the national government, and thus Congress had to comply with the bicameralism and presentment requirements of the Constitution. [21] Second, the Attorney General was performing an executive function in implementing the delegation from Congress, and the legislative veto was an impermissible interference in the execution of the laws. Congress could act only by legislating, by changing the terms of its delegation. [22] In Bowsher, the Court held that Congress could not vest even part of the execution of the laws in an officer, the Comptroller General, who was subject to removal by Congress because this would enable Congress to play a role in the execution of the laws. Congress could act only by passing other laws. [23]

[21] INS v. Chadha, 462 U.S. 919, 952 (1983).

[22] Ibid., 954-955.

[23] Bowsher v. Synar, 478 U.S. 714, 726-727, 733-734 (1986).

On the same day Bowsher was decided through a formalist analysis, the Court in Schor utilized the less strict, functional approach in resolving a challenge to the power of a regulatory agency to adjudicate as part of a larger canvas a state common-law issue, the very kind of issue that Northern Pipeline, in a formalist plurality opinion with a more limited concurrence, had denied to a non-Article III bankruptcy court. [24] Sustaining the agency's power, the Court emphasized "the principle that `practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.''' [25] It held that, in evaluating such a separation of powers challenge, the Court had to consider the extent to which the "essential attributes of judicial power'' were reserved to Article III courts and conversely the extent to which the non-Article III entity exercised the jurisdiction and powers normally vested only in Article III courts, the origin and importance of the rights to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III. [26] Bowsher, the Court said, was not contrary, because "[u]nlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.'' [27] The test was a balancing one, whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power.

NOTES:

[25] CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide Agricultural Products Company, 473 U.S. 568, 587 (1985)).

[26] Ibid., 851.

[27] Ibidd., 856.

While the Supreme Court, in applying one or the other analysis in separation of powers cases, had never indicated its standards for choosing one analysis over the other, beyond inferences that the formalist approach was proper when the Constitution fairly clearly committed a function or duty to a particular branch and the functional approach was proper when the constitutional text was indeterminate and a determination must be made on the basis of the likelihood of impairment of the essential powers of a branch, the overall results had been a strenuous protection of executive powers and a concomitant relaxed view of the possible incursions into the powers of the other branches. It was thus a surprise, then, when in the independent counsel case, the Court, again without stating why it chose that analysis, utilized the functional standard to sustain the creation of the independent counsel. [28] The independent-counsel statute, the Court emphasized, was not an attempt by Congress to increase its own power at the expense of the executive nor did it constitute a judicial usurpation of executive power. Moreover, the Court stated, the law did not ``impermissibly undermine'' the powers of the Executive Branch nor did it ``disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.'' [29] Acknowledging that the statute undeniably reduced executive control over what it had previously identified as a core executive function, the execution of the laws through criminal prosecution, through its appointment provisions and its assurance of independence by limitation of removal to a ``good cause'' standard, the Court nonetheless noticed the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel. This balancing, the Court thought, left the President with sufficient control to ensure that he is able to perform his constitutionally assigned functions.

NOTES:

[29] Ibid., 695 (quoting, respectively, Schor, supra, 478 U.S., 856, and Nixon v. Administrator of General Services, supra, 433 U.S., 443).

A notably more pragmatic, functional analysis suffused the opinion of the Supreme Court when it upheld the constitutionality of the Sentencing Commission. [30] Charged with promulgating guidelines binding on federal judges in sentencing convicted offenders, the seven-member Commission, three members of which had to be Article III judges, was made an independent entity in the judicial branch. The President appointed all seven members, the judges from a list compiled by the Judicial Conference, and he could remove from the Commission any member for cause. According to the Court, its separation-of-powers jurisprudence is always animated by the concerns of encroachment and aggrandizement. ``Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single branch powers more appropriately diffused among separate branches or that undermine the authority and independence of one or another coordinate nranch.'' [31] Thus, to each of the discrete questions, the placement of the Commission, the appointment of the members, especially the service of federal judges, and the removal power, the Court carefully analyzed whether one branch had been given power it could not exercise or had enlarged its powers impermissibly and whether any branch would have its institutional integrity threatened by the structural arrangement.

[30] Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court did acknowledge reservations with respect to the placement of the Commission as an independent entity in the judicial branch. Ibid., 384, 397, 407-08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly rigorous application of separation-of-powers principles. Ibid., 413, 422-427.

[31] Ibid., 382.

Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Supreme Court to adopt for all separation-of-powers cases the functional analysis, the history of adjudication since 1976 and the shift of approach between Myers and Humphrey's Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming before it can be decided that the Court has finally settled on the functional approach.

BICAMERALISM

From the beginning in the Federal Constitutional Convention, in the Virginia Plan, a two-house Congress was called for. The Great Compromise, one of the critical decisions leading to a successful completion of the Constitutional Convention, resolved the dispute about the national legislature by providing for a House of Representatives apportioned on the basis of population and a Senate in which the states were equally represented. The first function served, thusly, was federalism. [32] Coextensively important, however, was the separation-of-powers principle served. The legislative power, the Framers both knew and feared, was predominant in a society dependent upon the suffrage of the people, and it was important to have a precaution against the triumph of transient majorities. Hence, the Constitution's requirement that, before lawmaking could be carried out, bills must be deliberated in two houses, their members beholden to different constituencies, was in pursuit of this observation from experience. [33]

NOTES:

[33] Madison, Ibid., No. 51, 347-353 . The assurance of the safeguard is built into the presentment clause. Article I, Section 7, Clause 2; and see ibid., clause 3. The structure is not often the subject of case law, but it was a foundational matter in INS v. Chadha, 462 U.S. 919, 944-951 (1983).

Events since 1787, of course, have altered both the separation-of-powers and the federalism bases of bicameralism, in particular the adoption of the Seventeenth Amendment resulting in the popular election of U.S. Senators, so that the differences between the two chambers of Congress are today less pronounced.

ENUMERATED, IMPLIED, RESULTING, AND INHERENT POWERS

NOTE:

That, however, "the executive power'' is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is found in decisions of the Supreme Court; [35] a similar latitudinarian conception of "the judicial power of the United States'' was voiced in Justice Brewer's opinion for the Court in Kansas v. Colorado. [36] But even when confined to "the legislative powers herein granted,'' the doctrine is severely strained by Marshall's conception of some of these as set forth in his McCulloch v. Maryland opinion. He asserts that "the sword and the purse, all the external relations and no inconsiderable portion of the industry of the nation, are intrusted to its government;'' [37] he characterizes "the power of making war,'' of "levying taxes,'' and of "regulating commerce'' as "great, substantive and independent powers;'' [38] and the power conferred by the ``necessary and proper'' clause embraces, he declares, all legislative "means which are appropriate'' to carry out the legitimate ends of the Constitution, unless forbidden by ``the letter and spirit of the Constitution.'' [39]

NOTES:

[36] 206 U.S. 46, 82 (1907).

[37] 4 Wheat. (17 U.S.), 407.

[38] Ibid., 411.

[39] Ibid., 421.

Nine years later, Marshall introduced what Story, in his Commentaries, labels the concept of "resulting powers,'' those which "rather be a result from the whole mass of the powers of the national government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.'' [40] Story's reference is to Marshall's opinion in American Insurance Company v. Canter, [41] where the latter said, that "the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.'' [42] And from the power to acquire territory, he continues, arises as "the inevitable consequence,'' the right to govern it. [43]

[40] J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1256. See also ibid., 1286 and 1330.

[41] 1 Pet. (26 U.S.) 511 (1828).

[42] Ibid., 542.

[43] Ibid., 543.

Subsequently, powers have been repeatedly ascribed to the national government by the Supreme Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined'' by the Constitution; [44] the power to impart to the paper currency of the government the quality of legal tender in the payment of debts; [45] the power to acquire territory by discovery; [46] the power to legislate for the Indian tribes wherever situated in the United States; [47] the power to exclude and deport aliens; [48] and to require that those who are admitted be registered and fingerprinted; [49] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss-Wright Corporation, [50] decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

NOTES:

[45] Juilliard v. Greenman, 110 U.S. 421, 449-450 (1884). See also Justice Bradley's concurring opinion in Knox v. Lee, 12 Wall. (79 U.S.) 457, 565 (1871).

[46] United States v. Jones, 109 U.S. 513 (1883).

[47] United States v. Kagama, 118 U.S. 375 (1886).

[48] Fong Yue Ting v. United States, 149 U.S. 698 (1893).

[49] Hines v. Davidowitz, 312 U.S. 52 (1941).

[50] 299 U.S. 304 (1936).

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect "the internal affairs'' of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine -- the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues. Verbally, at least, Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch v. Maryland.

DELEGATION OF LEGISLATIVE POWER

"That the legislative power of Congress cannot be delegated is, of course, clear.'' [51] This 1932 statement has never been literally true, the delegation at issue in the very case in which the statement was made was upheld, and the Court in recent years has felt little constrained to much more than bow in the direction of the doctrine.Yet the doctrine of nondelegation of legislative powers and the permissible exception of delegation accompanied by standards have so settled a place in constitutional jurisprudence that notice mu be given at some length. [52]

NOTES:

[52] For particularly useful discussions of delegations, see 1 K. Davis, Administrative Law Treatise (St. Paul: 2d ed., 1978), Chapter 3; L. Jaffe, Judicial Control of Administrative Action (Boston: 1965), Chapter 2.

At least three distinct ideas contributed to the development of the doctrine that legislative power cannot be delegated. The first idea is the doctrine of separation of powers, the idea that the law-making power is vested in the legislative branch, the law-executing power in the executive branch, and the law-interpreting power in the judicial branch. [53] Is it not a violation of the doctrine to permit the law-making branch to divest itself of some of its power and confer it on one or the other of the other branches or to particular offices in the other branch?

NOTE:

The second idea is a due process conception precluding the transfer of regulatory functions to private persons, a distinct specie of the delegation doctrine not relevant usually in the field of administration, of delegation to another public agency. [54]

NOTE:

The third idea concerns the maxim "delegata potestas non potest delegari,'' which John Locke borrowed from agency and offered as a principle of political science. [55] In J. W. Hampton, Jr., & Company v. United States, [56] Chief Justice Taft explained the origin and limitations of this phrase as a postulate of constitutional law. "The well-known maxim `delegata potestas non potest delegari,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our federal and state constitutions than it has in private law. The Federal Constitution and state constitutions of this country divide the governmental power into three branches. . . . [I]n carrying out that constitutional division . . . it is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power.''

NOTES:

[56] 276 U.S. 394, 405-406 (1928).

But whatever the source or combination of sources of the doctrine, decisions of the Supreme Court accepting without comment delegations of vast powers to administrative or executive agencies constitute a de facto recognition that Congress, in the exercise of its granted powers, in conjunction with its necessary and proper power, often cannot either foresee or resolve problems of application of general laws to specific situations. Thus, ``[d]elegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.'' [57]

NOTE:

"It will not be contended,'' wrote Chief Justice Marshall in 1825, "that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.'' [58] "This is not to say,'' said Chief Justice Taft, "that the three branches are not coordinate parts of one government and that each, in the field of its duties, may not invoke the action of the two other branches, in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination.'' [59] Chief Justice Marshall frankly noted "that there is some difficulty in discerning the exact limits'' on the legislative power to delegate. Thus, "the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.'' [60]

NOTES:

[59] J. W. Hampton, Jr. & Company v. United States, 276 U.S. 394, 406 (1928).

[60] Ibid., 10 Wheat. (23 U.S.), 42.

Two theories suggested themselves to the early Supreme Court to justify the results of sustaining delegations. The Chief Justice alluded to the first in Wayman v. Southard. [61] He distinguished between "important'' subjects, "which must be entirely regulated by the legislature itself,'' and subjects "of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.'' While his distinction may be lost, the theory of the power "to fill up the details'' is impressively modern law.

NOTE:

A second theory, formulated even earlier, is that Congress may legislate contingently, leaving to others the task of ascertaining the facts that bring its declared policy into operation. [62]

NOTE:

Filling Up the Details. -- At issue in Wayman v. Southard [63] was the contention that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. [64] Chief Justice Marshall agreed that the rule-making power was a legislative function and that Congress could have formulated the rules itself, but he denied that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts. [65] Filling up the details of statutes was long a popular version of the nature of permissible delegations.

NOTES:

[64] Act of May 8, 1792, Section 2, 1 Statutes 275, 276.

[65] The power to promulgate rules of civil procedure was conferred by the Act of June 19, 1934, 48 Stat. 1064, now 28 U.S.C. Sec. 2072; the power to promulgate rules of criminal procedure was conferred by the Act of June 29, 1940, 54 Stat. 688, now 18 U.S.C. Sec. 3771. In both instances Congress provided for submission of the rules to it with the power presumably to change or to veto the rules. Additionally, Congress has occasionally legislated rules itself. E.g., 82 Stat. 197 (1968), 18 U.S.C. Sec. Sec. 3501-02 (admissibility of confessions in federal courts).

Thus, when Congress required the manufacturers of oleomargarine to have their packages "marked, stamped, and branded as the Commissioner of Internal Revenue . . . shall prescribe,'' the Supreme Court sustained the conviction of one selling his goods without the markings against his objection that he was prosecuted not for violation of law but for violation of a regulation. [66] "The criminal offence,'' said Chief Justice Fuller, "is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail.'' [67] Kollock was not the first such case, [68] but it was to be followed by a multitude of delegations and the sustaining of them. Soon thereafter, the Court, on the same theory, upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States. [69]

NOTES:

[67] Ibid., 533.

[68] United States v. Bailey, 9 Pet. (34 U.S.) 238 (1835); Caha v. United States, 152 U.S. 211 (1894).

[69] Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v. Grimaud, 220 U.S. 506 (1911) (executive officials to make rules governing use of forest reservations); ICC v. Goodrich Transit Company, 224 U.S. 194 (1912) (prescribing methods of accounting for carriers in interstate commerce).

Contingent Legislation. -- An entirely different problem arises when, instead of directing another branch of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of "filling up the details'' of a statute, authority for it must be sought elsewhere than in the first theory. It is to be found in an even earlier case, The Brig Aurora, [70] where the revival of a law upon the issuance of a presidential proclamation was upheld. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Supreme Court answered briefly that "we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct.'' [71]

NOTES:

[71] Ibid., 388.

The theory was utilized again in Field v. Clark, [72] where the Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated commodities "for such time as he shall deem just'' if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions, which "he may deem to be reciprocally unequal and unjust.'' In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents, which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, . . . to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations;'' [73] (2) that the act did "not, in any real sense, invest the President with the power of legislation. . . . Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. . . . He had no discretion in the premises except in respect to the duration of the suspension so ordered.'' [74] By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922, whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President. [75]

NOTES:

[73] Ibid., 691.

[74] Ibid., 692, 693.

[75] J. W. Hampton, Jr. & Compasny v. United States, 276 U.S. 394 (1928).

"[O]ur jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job, absent an ability to delegate power under broad general directives.'' [76] The modern doctrine may be traced in, its inception, to the 1928 case in which the Supreme Court, speaking through Chief Justice Taft, upheld congressional delegation to the President of the authority to set tariff rates that would equalize production costs in the United States and competing countries. [77] Although formally looking to the contingency theory, the Court's opinion also looked forward, emphasizing that, in seeking the cooperation of another branch, Congress was restrained only according to "common sense and the inherent necessities'' of the situation. [78] This vague statement was elaborated somewhat in the statement that the Court would sustain delegations whenever Congress provided an "intelligible principle'' to which the President or an agency must conform. [79]

NOTES:

[77] J. W. Hampton, Jr. & Company v. United States, 276 U.S. 39 (1928).

[78] Ibid., 406.

[79] Ibid., 409. The "intelligible principle'' test of Hampton is the same as the "legislative standards'' test of A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 530 (1935), and Panama Refining Company v. Ryan, 293 U.S. 388, 421 (1935).

The Regulatory State. -- Except for two Depression-era cases in which standards were found to be absent, the Supreme Court has never voided as impermissible a congressional delegation. [80] The now familiar pattern of regulation of important segments of the economy by boards or commissions, which combine in varying proportions the functions of all three branches of government, was first established by the states in the field of railroad rate regulation. Discovering that direct action was impracticable, the state legislatures created commissions to deal with the problem. One of the pioneers in this development was Minnesota, whose supreme court justified the practice in an opinion, which, with the implied [81] and later the explicit, [82] endorsement of the United States Supreme Court, practically settled the law on this point: `"If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic.'' [83] Contemporaneously, Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce . Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making power to the Commission, it has repeatedly affirmed rate orders issued by that agency. [84]

NOTES:

[81] The Court reversed the decision of the state supreme court on the grounds that the rates fixed by the commission were not subject to judicial review, a due process violation, but the opinion implicitly sanctioned the exercise of ratemaking powers by such bodies. Chicago, Milwaukee & St. Paul Railway Company v. Minnesota, 134 U.S. 418 (1890).

[82] J. W. Hampton, Jr. & Company v. United States, 276 U.S. 394, 409 (1928).

[83] State v. Chicago, Milwaukee & St. Paul Railway Company v. Minnesota 288, 301, 37 N.W. 782, 788 (1888), reviewed, on other grounds, 134 U.S. 418 (1890).

[84] ICC v. Louisville & Nashville R.R., 227 U.S. 88 (1913); New York v. United States, 331 U.S. 284, 340-350 (1947), and cases cited. See also New York v. United States, 342 U.S. 882 (1951); American Trucking Associations. v. Atchison, Topeka & Santa Fe Railway, 387 U.S. 397 (1967).

Breathtaking has been the breadth of delegations sustained . Congress has given the Interstate Commerce Commission the responsibility to approve railroad consolidations found to be in the "public interest,'' [85] and conferred powers on the Federal Radio Commission [86] and the Federal Communications Commission [87] to license broadcasting stations as the "public convenience, interest and necessity'' may require. In the field of communications still, the exercise of power by the FCC, pursuant to statute, to exert jurisdiction and authority over an industry that did not exist at the time Congress enacted the statute and that was unforeseen by Congress has been found to be valid. [88] The Supreme Court directed a regulatory agency acting under delegated powers to exercise its own judgment about whether competition or restraint would be in the public interest in the communications field, rather than to attempt to extrapolate a principle favoring one or the other from the body of congressional law.[89]

NOTES:

[86] Federal Radio Commission v. Nelson Brotherss Bond & Mortgage Company, 289 U.S. 266 (1933).

[87] National Broadcasting Company v. United States, 319 U.S. 190 (1943).

[88] United States v. Southwestern Cable Company, 392 U.S. 157 (1968) (regulation of cable television under the 1934 Communications Act). See also Red Lion Broadcasting Company v. FCC, 395 U.S. 367 (1969) (approving promulgation of rules on the "fairness doctrine'' and "right to reply'' privilege in the absence of congressional enactment).

[89] FCC v. RCA Communications, 346 U.S. 86 (1953).

The Supreme Court has upheld the delegation to the Federal Power Commission of authority to determine "just and reasonable'' rates. [90] Agencies have been held properly to have received power to determine whether rates and charges were too high or excessive. [91] Regulation of corporate conduct has been extended to close supervision of activity. [92]

NOTES:

[91] Yakus v. United States, 321 U.S. 414 (1944) (wartime delegation to administrator to fix commodity prices that would be fair and equitable); Lichter v. United States, 334 U.S. 742 (1948) (wartime delegation to determine excessive profits by defense industries). See also Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F.Supp. 737 (D.D.C. 1971) (three-judge court) (upholding imposition of nationwide price and wage controls by President upon general delegation).

[92] American Light & Power Company v. SEC, 329 U.S. 90 (1946) (upholding delegation of authority to Securities and Exchange Commission to prevent unfair or inequitable distribution of voting power among security holders).

In Mistretta v. United States, [93] the Supreme Court approved congressional delegations to the United States Sentencing Commission, an independent agency in the judicial branch, to develop and promulgate guidelines binding federal judges and limiting their discretion in sentencing criminal defendants. Although the Court enumerated the standards Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, but it was forthright in stating that delegations may carry with them "the need to exercise judgment on matters of policy.'' [94]

NOTES:

[94] Ibid., 378.

That this latter observation is indubitably true is revealed in many case results. Thus, the Court has upheld complex economic regulations of industries in instances in which the agencies had first denied possession of such power, had unsuccessfully sought authorization from Congress, and had finally acted without congressional guidance. [95] It has also recognized that when administrations change, new officials may have been conferred enough discretion so that they can change agency policies, often to a considerable degree, so that both previous and present agency policies may be consistent with congressional delegations. [96]

NOTES:

[96] Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-845, 865-866 (1984) (``[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments.'' Ibid., 865). See also Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, 42-44, 46-48, 51-57 (1983) (recognizing agency could have reversed its policy but finding reasons not supported on record).

Despite some dicta to the contrary, it appears that there is no power Congress cannot delegate. "[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.'' [97] Denying that it had ever suggested that the taxing power was nondelegable, the Supreme Court has placed that congressional authority on the same plane of permissible delegation. [98] Nor is there a problem with the fact that, in exercising a delegated power, the President or another officer may effectively suspend or rescind a law passed by Congress. A rule or regulation properly promulgated under authority received from Congress is law and under the supremacy clause of the Constitution can preempt state law, [99] and likewise it can supersede a federal statute. Early cases sustained giving the President the authority, upon the finding of certain facts, to revive or suspend a law, [100] and the President's power to raise or lower tariff rates equipped him to alter statutory law. [101] Similarly, in Opp Cotton Mills v. Administrator, [102] Congress' decision to delegate to the Wage and Hour Administrator of the Labor Department the authority, after hearings and findings by an industry committee appointed by him, to establish a minimum wage in particular industries greater than the statutory minimum, but no higher than a prescribed figure was sustained. Congress has not often expressly addressed the issue of repeals or supersessions, but, in authorizing the Supreme Court to promulgate rules of civil and criminal procedure and of evidence, it directed that such rules supersede previously enacted statutes with which they conflicted. [103]

Notes:

[98] Skinner v. Mid-America Pipeline Company, 490 U.S. 212 (1989). In National Cable Television Association v. United States, 415 U.S. 336, 342 (1974), and FPC v. New England Power Company, 415 U.S. 345 (1974), the Court had appeared to suggest that delegation of the taxing power would be fraught with constitutional difficulties. How this conclusion could have been thought viable after the many cases sustaining delegations to fix tariff rates, which are, in fact and law, taxes, J. W. Hampton, Jr. & Company v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); and see FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (delegation to President to raise license "fees'' on imports when necessary to protect national security), is difficult to discern. Nor should doubt exist respecting the appropriations power. See Synar v. United States, 626 F.Supp. 1374, 1385-1386 (D.D.C.) (three-judge court), affd. on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).

[99] City of New York v. FCC, 486 U.S. 57, 63-64 (1988); Louisiana PSC v. FCC, 476 U.S. 355, 368-369 (1986); Fidelity Federal Savings & Loan Associationn. v. de la Cuesta, 458 U.S. 141, 153-154 (1982).

[100] E.g., The Brig Aurora, 7 Cr. (11 U.S.) 382 (1813).

[101] E.g., J. W. Hampton, Jr. & Company v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892).

[102] 312 U.S. 126 (1941).

[103] See 18 U.S.C. Sec. Sec. 3771, 3772 (criminal procedure); 28 U.S.C. Sec. 2072 (civil procedure); id., Sec. 2076 (evidence). In Davis v. United States, 411 U.S. 233, 241 (1973), the Court referred in passing to the supersession of statutes without evincing any doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100-702, 102 Stat. 4642, 4648, amending 28 U.S.C. Sec. 2072, the House would have altered supersession, the Senate disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H.Rept.No. 100-889, 100th Congress, 2d session (1988), 27-29; 134 Congressional Reccod 23573-23584 (1988); Ibid., 31051-31052 (Senator Heflin); Ibid., 31872 (Representative Kastenmeier).

Recent concerns in the scholarly literature with respect to the scope of the delegation doctrine, [104] have been reflected within the judicial writings of some of the Supreme Court justices. [105] Nonetheless, the Court's most recent decisions evidence no doubt of the constitutional propriety of very broad delegations, [106] and the practice will doubtlessly remain settled.

NOTES:

[105] American Textile Manufacturers Institute v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 671 (1980) (then-Justice Rehnquist concurring). See also United States v. Midwest Video Corporation, 406 U.S. 649, 675, 677 (1972) (Chief Justice Burger concurring, Justice Douglas dissenting); Arizona v. California, 373 U.S. 546, 625-626 (1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Department, supra, 645-646 (plurality opinion); National Cable Television Association v. United States , 415 U.S. 336, 342 (1974).

[106] E.g., Mistretta v. United States, 488 U.S. 361, 371-379 (1989). See also Skinner v. Mid-America Pipeline Company, 490 U.S. 212, 220- 224 (1989); Touby v. United States, 500 U.S. 160, 164-168 (1991). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, supra, 415-416, conceded both the inevitability of delegations and the inability of the courts to police them.

Standards. -- Critical to the Supreme Court's explanations of the permissibility of legislative delegations has been the necessity of ``intelligible principles'' or ``standards'' to guide the agency or official in the performance of the task Congress has set. And, indeed, the only two instances in which the Court has found an unconstitutional delegation to another governmental agency have involved grants of discretion to administrators that the Court found to be unbounded. Thus, in Panama Refining Company v. Ryan, [107] the President was authorized to prohibit the shipment in interstate commerce of "hot oil' '-- oil produced in excess of state quotas. The statute was silent with regard to when and under what circumstances he should exercise the power and the Court, only Justice Cardozo dissenting, found that the stated policy of the legislation contained contrary directives. [108] While the grant of power in Panama Refining was narrow, the grant, in A.L.A. Schechter Poultry Corporation v. United States, [109] was sweeping. The National Industrial Recovery Act devolved on the executive branch the power to formulate codes of "fair competition'' for all industry in order to promote "the policy of this title.'' The policy was "to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, . . . and otherwise to rehabilitate industry. . . .'' [110] Though much of the opinion is written in terms of the failure of these policy statements to provide meaningful standards, it seems more likely the Court was in fact concerned with the "virtually unfettered'' discretion conferred on the President of "enacting laws for the government of trade and industry throughout the country.'' [111]

NOTES:

[108] It is not without note that the Supreme Court, in the view of many observers, was influenced heavily by the fact that the President's orders were nowhere published and notice of regulations bearing criminal penalties for their violations was spotty at best. Cf. E. Corwin, The President -- Office and Powers, 1787-1957 (New York: 4th ed. 1958), 394- 395. The result of the U.S. government's discomfiture in Court was enactment of the Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C. Sec. 301, providing for publication of Executive Orders and agency regulations in the daily Federal Register.

[109] 295 U.S. 495 (1935).

[110] 48 Stat. 195 (1933), Tit. I, Sec. 1.

[111] 295 U.S., 541-542.

This conclusion is bolstered by the Supreme Court's reversal of a lower federal court, which had literally applied the Schechter language to void a delegation to the Federal Home Loan Bank Commissioner of power to issue regulations for the appointment of conservators or receivers to take charge of banking associations. [112] The Act contained no standards, no declarations of policy, no guidance to the Commissioner. Nevertheless, the Court unanimously sustained the delegation. ``It may be,'' said Justice Jackson, ``that explicit standards . . . would have been a desirable assurance of responsible administration.'' [113] But while desirable, standards were not a constitutional necessity, since ``[t]he provisions are regulatory'' and deal with but one enterprise, banking, the problems of which are well known and the remedies authorized are as equally well known. ``A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields.'' [114]

NOTES:

[113] Ibid., 250.

[114] Ibid. Indeed, the Court has frequently deprecated the broader holdings of the two cases by pointing out that Panama Refining criminalized acts not previously punishable offenses and that Schechter involved delegations to private individuals. Mistretta v. United States, 488 U.S. 361, 373 n. 7 (1989).

Where the Court has determined that standards are necessary, it has been notably successful in finding them. Standards have been ascertained to exist in such formulations as ``just and reasonable,'' [115] ``public interest,'' [116] ``public convenience, interest, or necessity,'' [117] and ``unfair methods of competition.'' [118] Thus, in National Broadcasting Co. v. United States, [119] the Court found that the discretion conferred on the Federal Communications Commission to license broadcasting stations to promote the ``public interest, convenience, or necessity'' conveyed a standard ``as complete as the complicated factors for judgment in such a field of delegated authority permit.'' [120] Yet the regulations upheld were directed to the contractual relations between networks and stations and were designed to reduce the effect of monopoly in the industry, a policy on which the statute was silent. [121]

NOTES:

[116] New York Central Securities Corp. v. United States, 287 U.S. 12 (1932).

[117] Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933).

[118] FTC v. Gratz, 253 U.S. 421 (1920).

[119] 319 U.S. 190 (1943).

[120] Ibid., 216.

[121] Similarly, the promulgation by the FCC of rules creating a ``fairness doctrine'' and a ``right to reply'' rule has been sustained, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as well as a rule requiring the carrying of anti-smoking commercials. Banzhaf v. FCC, 405 F.2d 1082 (D.C.Cir. 1968), cert. den. sub nom., Tobacco Institute v. FCC, 396 U.S. 842 (1969).

On the other hand, the standards may be set out in greater detail and with greater relevancy to the action taken but may in fact limit discretion not at all. In United States v. Rock Royal Co- operatives, [122] the Court sustained the delegation to the Secretary of Agriculture of the power to fix the prices of six commodities if and when he chose to exercise the power with regard to all or some of the commodities. The Act provided that the price to be fixed should afford farmers purchasing power equivalent to that they had enjoyed in a base period, but the Secretary was also to protect the interest of the consumer by a gradual increase in prices in accordance with the public interest and current consumption. The majority of the Court thought that the Act stated the purposes which Congress had hoped to achieve and set out standards by which it hoped the purposes could be realized.

NOTE:

Numerous delegations have been sustained by the Court in both war and peacetime which have vested in administrative agencies and executive officers vast powers over the economic life of the country. [123] By and large, however, the Court has paid scant attention to delegation as a constitutional issue in these circumstances. An exception is Arizona v. California, [124] in which a divided Court sustained the delegation of total discretion to the Secretary of the Interior to apportion water among the southwestern States in times of shortage. The statute prescribed no formula or standards, and the majority agreed that he was entirely free ``to choose among the recognized methods of apportionment or to devise reasonable methods of his own,'' [125] the Secretary being required to reach ``an informed judgment in harmony with the Act, the best interests of the Basin States, and the welfare of the Nation.'' [126] Three dissenters noted they had ``the gravest constitutional doubts'' about the delegation. [127]

NOTES:

[124] 373 U. S. 546 (1963).

[125] Ibid., 593.

[126] Ibid., 594.

[127] Ibid., 625.

Administrative implementation of the congressional enactment may well provide the intelligible standard. Thus, in Lichter v. United States, [128] the Court sustained the delegation of power to the War Department to recover ``excessive profits'' earned on war contracts. The first Act contained no definition, but the second defined ``excessive profits'' as meaning ``any amount of a contract or subcontract price which is found as a result of renegotiation to represent excessive profits.'' [129] The definition was essayed in the light of standards for determining ``excessiveness'' worked out by the War Department and in 1944 [130] Congress specifically adopted these standards. Yet, the Court upheld the validity of the delegation as to proceeds earned prior to this 1944 adoption. ``The statutory term `excessive profits,' in its context, was a sufficient expression of legislative policy and standards to render it constitutional.'' [131]

NOTES:

[129] Sec. 403(a)(4) of the Act, as added by Tit. 8 of the Act of October 21, 1942, 56 Stat. 798, 982.

[130] Sec. 403(a)(4) of the Act, as amended by Tit. 7 of the Act of February 25, 1944, 58 Stat. 21, 78.

[131] 334 U.S., 783.

It seems therefore reasonably clear that the Court does not really require much in the way of standards from Congress. The minimum which the Court seems, but only sometimes, to insist on is that Congress employ a delegation which ``sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.'' [132] Where the congressional standards are combined with requirements of notice and hearing and statements of findings and considerations by the administrators, so that judicial review under due process standards is possible, the constitutional requirements of delegation have been fulfilled. [133] This requirement may be met through the provisions of the Administrative Procedure Act, [134] but where the Act is inapplicable or where the Court sees the necessity for exceeding the provisions, due process can supply the safeguards of required hearing, notice, supporting statements, and the like. [135]

NOTES:

[133] Ibid., 426; Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 (1989); American Power Co. v. SEC, 329 U.S. 90, 107, 108 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 144 (1941). It should be remembered that the Court has renounced strict review of economic regulation wholly through legislative enactment, forsaking substantive due process, so that review of the exercise of delegated power by the same relaxed standard forwards a consistent policy. E.g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

[134] Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. Sec. Sec. 551- 559. In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), six Justices agreed that a Board proceeding had been in fact rule-making and not adjudication and that the APA should have been complied with. The Board won the particular case, however, because of a coalescence of divergent views of the Justices, but the Board has since reversed a policy of not resorting to formal rule-making.

[135] E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v. Constantineau, 400 U.S. 433 (1971).

Foreign Affairs. -- That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was indicated in United States v. Curtiss-Wright Corp. [136] There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President was largely free of the constitutional constraints imposed by the nondelegation doctrine when he acted in foreign affairs. [137] The Curtiss-Wright doctrine has waxed and waned over the years, and the viability of this distinction is doubtful.

NOTES:

[137] Ibid., 319-322. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280, 291-292 (1981). This view also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S . 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926).

Delegations to the States. -- From the beginning, Congress enacted hundreds of statutes that contained provisions authorizing state officers to enforce and execute federal laws. [138] Challenges to the practice were uniformly rejected. While the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the propriety of authorizing them to act if they chose. [139] When, in the Selective Draft Law Cases, [140] the contention was made that the act was invalid bec