Concept
Early Judicial Formulas
Nondelegation doctrine
Early Judicial Formulas
The Court’s first response to delegation challenges was to announce a nearly absolute rule and then decline to apply it against Congress. In Field v. Clark (1892) the Court called the rule against delegating legislative power “a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”1 Yet in this early period it struck down no congressional grant of authority on delegation grounds, and it saved each challenged statute by shrinking its description of what the executive branch had received.2 Two descriptions recur. The executive was only finding a fact on which Congress had made its rule depend, or it was only supplying the “details” of a policy Congress had already chosen.3
Each description tried to separate legislating from executing. To legislate is to choose policy, so an official who determines whether a condition Congress named has occurred, or who works out particulars under a policy Congress settled, appears to carry out someone else’s law instead of making law. The labels, however, did not match what officials did. The statute in Field authorized the President to impose retaliatory tariffs when foreign nations raised their duties on American agricultural products. The statute in United States v. Grimaud let the Secretary of Agriculture issue regulations, backed by criminal penalties, governing the use and preservation of the national forests.4 Both officers exercised a substantial measure of policy judgment, and the holdings belied the Court’s absolutist language.5
Neither description lasted. The Court first upheld statutes by calling the executive’s role a factual contingency. When that reasoning stopped working, it said Congress had made the important decisions and left only details. When that stopped working too, it adopted the “intelligible principle” test taught later in this chapter.6 Narrow formulas could not accommodate a modern industrial economy that demanded more regulation, even when read liberally, and the judicial inquiry gradually shifted to whether Congress had supplied standards that limit agency discretion.7 A student who meets one of these labels in a fact pattern should therefore ask how much policy judgment the recipient actually exercises, because the label alone settles little. The details formula comes first below because it lets a delegate do more; the contingency formula follows, because under it the officer writes no rules at all.
Filling Up the Details
The details formula comes from Chief Justice Marshall’s opinion in Wayman v. Southard, which upheld a statute that told federal courts to follow state procedure while letting them make “alterations and additions.”8 Marshall sorted the subjects Congress might address into two groups: “important subjects, which must be entirely regulated by the legislature itself,” and “those of less interest, in which a general provision may be made, and power given to those who are to act . . . to fill up the details.”9 The statute survived because Congress had announced the controlling policy when it ordered federal courts to follow state procedures, and the leftover authority to adjust that borrowed procedure did no more than fill up the details.10
The formula divides the work. Congress chooses the policy, and the delegate supplies the particulars that carry it out. Each half has its own justification. Particulars are numerous and specialized (forms, procedures, technical specifications, subordinate rules), and two Houses and a President cannot enact them one at a time without being diverted, as Jefferson put it, “from great to small objects.”11 Particulars also follow from the policy. Once Congress has chosen the policy, the rest is implementation, so little is lost by letting another branch work it out; the decision voters can judge, and the one Article I’s lawmaking procedure exists to filter, has already been made. What cannot move is the choice of the controlling policy on an important subject, which Marshall reserved to the legislature itself. And a court can check the result by asking whether the delegate’s rule implements a policy already found in the statute.
Later cases built on Marshall’s distinction and stretched it from the trivial to the consequential. In In re Kollock the Court upheld a statute that assigned the Commissioner of Internal Revenue the job of designing tax stamps for margarine packages, a particular that follows once Congress has decided to tax margarine and require stamps.12 Using the same logic, the Court later sustained a far more consequential statute authorizing the Secretary of Agriculture to adopt rules on the “use and occupancy” of public forests to protect them from “destruction” and “depredations.”13 Chief Justice Taft described the practice in J.W. Hampton, Jr. & Co. v. United States: Congress often vests discretion in executive officers, “within defined limits,” to make public regulations that interpret a statute and direct “the details of its execution,” even to the point of penalizing a breach.14
The forest statute reached the Court in United States v. Grimaud. It authorized the Secretary of Agriculture to make regulations on the use and occupancy of the national forests so as to preserve them from destruction, and the statute itself supplied the punishment for violating those regulations. The Secretary required sheep grazers to obtain a permit first. The defendant grazed sheep in a national forest without one and was indicted, and the Court held that the demurrer to the indictment should have been overruled.15 The criminal sanction did not alter the analysis. Statutes of this kind confer power to make rules “for administering the laws which did govern,” and “none of these statutes could confer legislative power.”16 Rules made to administer a statute stay administrative even when a violation is punished as a public offense, particularly where the statute, not the agency, fixes the punishment.17
Grimaud also shows how generous the word “details” could be. Requiring a permit to graze on national forest land involved real policy judgment by the Secretary, and the Court treated that judgment as detail work anyway.18 The label held because Congress had stated the purpose of protecting the forests from destruction and had fixed the penalty, so each of the Secretary’s choices could be defended as a means to an end Congress had already chosen. On an exam, calling an agency’s rules “details” only restates the conclusion. The answer must name the policy Congress chose and show that the delegate’s rules implement it.
A statute that fails the formula looks different. In Panama Refining Co. v. Ryan Congress authorized the President to prohibit interstate shipment of oil produced above state quotas and gave the President no guidance about when to impose the prohibition.19 Whether to impose the ban at all was left to the President, and that choice is the policy question itself, which no statute had answered in advance. The Court struck the provision down, the first time it had invalidated an Act of Congress as an excessive delegation; a later section returns to that decision.20 The two statutes differ in what Congress decided before it delegated. In Grimaud Congress settled the goal and the sanction and left the Secretary to select rules that pursue them. In Panama Refining Congress settled nothing about when the ban should apply.
When a fact pattern shows an agency writing binding rules, the first question under this formula is what Congress itself decided. If the statute fixes the policy and the delegate’s rules carry it out, the rules are particulars, even when they are consequential and even when violating them is a crime. If the delegate decides whether the policy applies or what the policy will be, nothing is left to fill up, because the policy choice is the thing delegated. The second formula reaches a similar destination by another route: Congress writes the rule and makes its operation depend on what an executive officer finds to be true.
Contingent Fact-Finding
The classic statement of the contingency formula comes from Justice Harlan’s opinion in Field v. Clark: the legislature “cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend.”22 A statute built this way reads as an if-then rule. Congress writes both the condition and the consequence, and an executive officer is asked only whether the condition has come to pass. Field also quoted the observation, taken from an earlier decision, that half the statutes on the books “are in the alternative,” depending on the discretion of someone charged with “determining whether the proper occasion exists for executing them,” and that exercising that discretion cannot be called “the making of the law.”23
The reason for the formula is practical. Denying the power, the Court said, “would be to stop the wheels of government,” because many things on which wise legislation depends “cannot be known to the lawmaking power” when it acts and must be determined outside the halls of legislation.24 Congress legislates once, at a fixed moment, and cannot know whether a foreign government will keep interfering with American ships or whether a proposed structure will obstruct a river. A statute written to operate on whichever state of the world turns out to exist solves that problem and leaves the lawmaking where Article I puts it. Every result the statute can produce was chosen by Congress in a bill that passed both Houses and was presented to the President, so the officer’s finding only selects among results already chosen. The officer can report which condition exists but cannot alter what follows from it, and the policy decision stays with the branch built to make it.
The Napoleonic Wars supplied a standard example. Britain and France each tried to block American trade with the other, and Congress responded with a statute providing that an embargo would be imposed against one country if the President found that the other had stopped interfering with American trade.25 In Cargo of the Brig Aurora v. United States the Court saw no sufficient reason why Congress could not impose an embargo conditionally rather than outright, as its judgment directed.26 Congress had settled that an embargo would exist and what it would be, and the President’s job was to learn whether either belligerent had changed its conduct. Later, Congress made a bridge lawful upon a finding by the Secretary of War, and the Court held that Congress “did not abdicate any of its authority” but “simply declared that, upon a certain fact being established, the bridge should be deemed a lawful structure, and employed the secretary of war as an agent to ascertain that fact.”27
Field v. Clark itself involved the Tariff Act of 1890, which exempted sugar, molasses, coffee, tea, and hides from duty but let the President suspend the exemption whenever satisfied that a country producing and exporting those goods imposed duties on American agricultural products that the President deemed “reciprocally unequal and unreasonable.”28 The Court upheld the Act after reciting a history, running back to 1798, of statutes that gave the President power to discontinue prohibitions, suspend the operation of acts, or declare their provisions inoperative.29
The contingency formula differs from the details formula in what the officer produces. Under the details formula the delegate writes subordinate rules, so the question is whether those rules implement a policy Congress chose. Under the contingency formula Congress writes the whole rule and the officer writes nothing; the officer decides only whether the condition for the rule’s operation exists. Whether a belligerent has stopped interfering with American ships, or whether a bridge will block navigation, are questions with answers in the world, and the statute fixed what each answer would trigger.
The device works only while the finding is truly factual. Its justification is that the officer reports a condition Congress defined, so once the supposed fact becomes a judgment about what would be wise, the officer is choosing what the law will be. The tariff statute in Field shows how strained the label can become. A President deciding whether another country’s duties are “reciprocally unequal and unreasonable” evaluates as well as observes, and the Court’s picture of the executive as merely ascertaining a fact understated what was happening: the executive was exercising a substantial measure of policy judgment.30 That mismatch between label and practice is part of the reason the Court later turned to a test about standards. In Clinton v. City of New York the Court distinguished earlier statutes of the Field kind on two grounds: they were contingent upon an executive finding of fact, and they concerned foreign affairs, where the President has a special “degree of discretion and freedom.”31 The first ground is the one developed here. The second returns later in this chapter, with the subject matter of a delegation and the President.
The same limit drives the modern criticism of the doctrine. Justice Gorsuch’s dissent in Gundy v. United States refused to treat the Sex Offender Registration and Notification Act (SORNA) as conditional legislation subject to executive fact-finding. SORNA, he wrote, left the Attorney General free to impose on 500,000 pre-Act offenders all of the statute’s requirements, some of them, or none of them, and free to change that choice at any point or across administrations.32 Congress, he charged, could not reach the consensus needed to resolve the hard questions, so it “passed the potato” to the Attorney General.33 A useful check follows from that charge: could an officer looking at the same facts lawfully reach a different outcome because of a different view of good policy? If so, the officer is choosing, and the analysis can be run as a sequence of steps.