Factors Beyond the Standard

Factors Beyond the Standard

The intelligible principle test asks whether Congress supplied a standard, and courts apply that test permissively. A court that stopped there would read only the statute, yet challenges to delegations are not decided so narrowly. The constitutionality of a delegation of rulemaking or other discretionary authority may also turn on the subject matter of the delegation, the identity of the recipient, and the presence or absence of accountability mechanisms such as mandatory procedures or judicial review.¹ Some delegations also reach beyond market regulation and raise significant personal-liberty issues, and rules enforced by criminal penalties are one example.²

Each factor changes how much work the statutory standard must do. Earlier sections showed that a standard keeps basic policy choices with Congress, guides the recipient, and gives a court something to measure against; the factors below can lighten that burden or increase it. A private recipient draws suspicion because it may be self-interested and escapes constraints, such as presidential oversight, that bind agencies, while the President, the states, and tribal governments hold independent constitutional or sovereign authority and are less likely to raise problems.³ The kind of power matters as well. Some congressional powers, such as the power to declare war, are so central to legislative authority that they may not be delegated at all, or only under a narrowly defined intelligible principle, whereas the President's powers in military matters and foreign affairs can justify a broader grant.⁴ Finally, a statute that requires procedures such as mandatory public participation, or provides review by an independent judiciary, supplies accountability that its words alone cannot.⁵

These factors adjust how much specificity a court demands of the statute; none is a separate test with elements of its own. An answer therefore begins with the principle Congress supplied and then asks whether the recipient, the subject, the safeguards, or the sanction raises or lowers the demand that principle must meet.

The private recipient is the clearest of these factors, because the NIRA codes already showed trade associations drafting the rules that governed their own industries.

Private Recipients

Schechter Poultry objected to the NIRA codes for a second reason besides their missing standard: industry groups wrote them. The Court asked whether Congress could empower trade or industrial associations to enact the laws they deem wise for their trades, and whether such groups become legislative bodies because they know their own enterprises. It found the answer obvious: “Such a delegation of legislative power is unknown to our law and is utterly inconsistent with the constitutional prerogatives and duties of Congress.”⁶ That question asks who holds the lawmaking pen, which differs from how closely the statute guides the pen, and the earlier discussion of standards addressed only the second.

The suspicion rests on what a private rule-writer stands to gain. In Schechter the Court disfavored giving private trade associations authority to formulate their own “codes of fair competition,” because associations may protect themselves at the expense of competitors and consumers; that inclination runs against the Article I norm of laws made for the whole community, so a delegation of governmental power to them is suspect.⁷ A government official, by contrast, works under constraints, such as presidential oversight, that do not reach private bodies.⁸ Members of a private group that holds delegated power may use it to harm or exclude their competitors, and regulation by a biased decisionmaker may be fatal to the delegation under the Due Process Clause.⁹

Carter v. Carter Coal Co. (1936) put the concern in its sharpest form. The case involved industry codes for the coal industry, roughly similar to the codes of fair competition in Schechter, and the Court counted one feature as an additional factor: decisionmaking power had effectively been granted to committees of industry representatives rather than to government officials.¹⁰ It called the result “delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.”¹¹ The quotation takes the disinterested official as the baseline recipient and measures the private committee against it. Behind that baseline lies an argument from accountability: only Congress holds the federal legislative power, because only Congress is politically accountable for its policy choices.¹²

Carter Coal also bears on how to read the 1935 decisions. Many scholars and at least three Justices have explained the opinions that invalidated the NIRA as resting not on a bar against delegating policymaking power to a government agency but on a different principle: Congress cannot delegate broad regulatory power to private market participants with clear conflicts of interest.¹³ That reading competes with the standards-based account taught earlier, and Schechter supplies material for both, because it asks whether trade groups can act as legislative bodies and also examines how little the statute limited the codes.¹⁴ A good answer on the NIRA cases can therefore cite the missing standard and the interested drafters together.

The suspicion stops short of a ban on every private role in rulemaking, and two later decisions show where it ends. In Currin v. Wallace the Court upheld the Secretary of Agriculture's power to set binding tobacco standards after a two-thirds vote of the growers, and in Sunshine Anthracite Coal Co. v. Adkins it allowed local coal producers to sit on boards that regulated coal sales under the oversight of the governmental Bituminous Coal Commission.¹⁵ Neither case overruled Carter Coal. The Court held instead that neither involved a delegation of legislative power to private actors: in Currin, public officials determined the substantive content of the standards and the growers decided only whether they would take effect, and in Sunshine, the statute required public officials to review and place an official imprimatur on the privately devised regulations.¹⁶ The Court has continued to stress government review when it upholds arrangements that involve private decisionmakers.¹⁷

Each arrangement answers the conflict-of-interest worry by a different mechanism. In Currin the growers wrote nothing: they cast a yes or no on standards the Secretary had written, so their self-interest had no way to shape the rule's content. In Sunshine the producers could draft, but nothing they drafted bound anyone until a public official reviewed and approved it. In Carter Coal, industry representatives made the decisions in place of government officials. Review helps only when it checks something, however, and the NIRA shows the limit. The codes did reach the President for approval, yet the statute let the proponents of a code “roam at will” across a wide field of policy and let the President approve or disapprove their proposals “as he may see fit,” so the approval step did not confine what proposers could ask for.¹⁸

The private-delegation concern has decided far fewer cases than it has been invoked in. For many years Carter Coal's prohibition remained alive in theory and nearly dead in practice, because almost all private delegations were upheld.¹⁹ The idea persists: in 2023 the Fifth Circuit stated in Consumers' Research v. FCC that the “private nondelegation doctrine” has “continuing force.”²⁰

The Amtrak litigation shows both the survival of the idea and the importance of classifying the recipient. Section 207 of the Passenger Rail Investment and Improvement Act of 2008 gave Amtrak joint authority with the Department of Transportation to develop metrics and standards governing Amtrak's relations with the freight railroads whose tracks it uses.²¹ In 2013 the D.C. Circuit found that Amtrak was a private organization operated and managed as a for-profit corporation, held that Congress could not delegate to it power to set standards by which it might itself benefit, and overturned the section.²² The Supreme Court reversed in Department of Transportation v. Association of American Railroads (2015), treating Amtrak as a governmental entity.²³ That classification removed the premise of the private-delegation holding but did not end the case. If Amtrak and the Federal Railroad Administration could not agree, the statute let the Surface Transportation Board appoint an arbitrator, who could be a private person, and a due process challenge to Amtrak's self-interested participation went back to the lower court.²⁴

Steps three and four carry most of the weight, because they separate Carter Coal from the arrangements the Court later upheld. A private body that writes rules adverse to others in its business and answers to no reviewer sits at one end; a private body that only votes on a public official's rule sits at the other. The private-recipient concern adjusts how much the statute must do and does not replace the intelligible principle inquiry, so a complete answer still asks what limits the statute places on the recipient.

Subject Matter and the President

The demand the intelligible principle test places on a statute shifts with the power delegated and the officer who receives it, and United States v. Curtiss-Wright Export Corp. (1936) shows the shift most clearly. A joint resolution approved on May 28, 1934 authorized the President to prohibit arms sales to Bolivia and Paraguay, then fighting in the Chaco, if he found that a prohibition would help restore peace.²⁶ A proclamation issued the same day, and Curtiss-Wright was later indicted for conspiring to sell fifteen machine guns to Bolivia.²⁷ The company argued that the resolution was an unconstitutional delegation, and the Court upheld the embargo by a vote of seven to one.²⁸

The route the Court took limits what the case holds. Justice Sutherland found it unnecessary to decide whether the resolution would have been an unlawful delegation had it dealt only with internal affairs, and he asked whether it was valid as applied to a situation entirely external to the United States.²⁹ He explained that federal powers over external and internal affairs differ in origin and nature, because external sovereignty did not depend on the Constitution's affirmative grants of power.³⁰ The opinion ended by stressing “the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.”³¹

A thinner standard suffices because of what a standard is for. A principle keeps basic policy with Congress, guides the recipient, and gives courts a measure; in foreign affairs, the Executive and Legislative branches already share the powers involved,³² so a grant of discretion moves less of the policy choice than a grant in a purely legislative field. When Congress authorizes an embargo, it adds to an authority the President already holds.

The same reasoning reaches the military. In Loving v. United States (1996) Congress let the President prescribe the aggravating factors that allow a court-martial to impose a death sentence, and the Court found it “hard to deem lawless a delegation giving the President broad discretion to prescribe rules” on those factors, because the delegated duty was “interlinked with duties already assigned to the President by express terms of the Constitution.”³³ Justice Gorsuch's dissent in Gundy v. United States generalizes the point: Congress's legislative authority sometimes overlaps with authority the Constitution separately vests in another branch, so a statute conferring wide discretion on the executive may raise no separation-of-powers problem when the discretion is exercised over matters already within the scope of executive power.³⁴ He suggested that the foreign-affairs statute in Cargo of the Brig Aurora may be an example of this permissible lawmaking, since many foreign affairs powers are vested in the President by Article II.³⁵ A delegation to a recipient with independent constitutional authority is therefore less likely to be problematic,³⁶ because a standard has less to protect when the Constitution already places part of the decision with an accountable constitutional officer, which a self-interested private body is not.

The President's identity alone does not produce that result. The code power in Schechter also ran through the President, who adopted a lengthy fair competition code written by a group of possibly self-serving New York poultry butchers, without needing to convince a majority of legislators.³⁷ Both statutes gave the President a role in making law, so the difference between them is the overlap. The embargo lay in a field where Article II gives the President a share, while the code power reached domestic private commerce, where the whole policy choice passed from Congress to the executive. That rationale belongs to the foreign-affairs and military setting. Within the domestic sphere, separation-of-powers disputes arise among all three branches and are not confined to Congress and the executive,³⁸ and the overlap that eased the grants in Curtiss-Wright and Loving cannot be assumed there.

Curtiss-Wright also contains language that reaches well beyond delegation, and the two should be kept apart. The delegation holding is that Congress may leave the President discretion in a foreign-affairs setting without narrowly definite standards.³⁹ The broader language describes the President as “the sole organ of the federal government in the field of international relationships.” Presidents generally have far greater power to act unilaterally in foreign affairs than in domestic affairs, but debate continues over whether the President is that sole organ, and many presidents and their advisors claim that control over foreign policy is an executive power vested by Article II even if not specifically enumerated.⁴⁰ When the Court later addressed the question in Zivotofsky, it claimed to reject Curtiss-Wright's sweeping dictum that the President has exclusive power to conduct international relations, although Justice Scalia's dissent accused the majority of replicating Curtiss-Wright's reasoning.⁴¹ The delegation holding does not depend on how that debate ends, because Congress itself authorized the embargo and the only question was whether Congress could leave the President discretion to impose it. The scope of inherent presidential power belongs to the separate study of executive authority.

The opposite pole concerns powers the Constitution gives to Congress itself. Some congressional powers, such as the power to declare war, are so central to legislative authority that they may not be delegated, or may be delegated only under a narrowly defined intelligible principle.⁴² The recipient's own constitutional authority ordinarily cannot rescue such a grant, because the overlap that supported the delegations in Loving and Curtiss-Wright is missing: the power transferred belongs to Congress, so the grant gives the recipient no authority it already holds.

Because these two ideas pull in opposite directions, an exam answer should sort the delegation by power and by recipient before judging the statute's words.

These factors raise or lower the demand placed on the statute, and the ordinary test still opens every analysis. A recipient with its own constitutional authority eases that demand only for powers within the recipient's own field.

Procedures and Judicial Review INS v. Chadhaa shows why executive action under a delegation need not pass through the bicameral process that governs statutes, and the explanation reveals that the statutory standard is only one check on a delegate. Executive action of that kind is always subject to check by the terms of the legislation that authorized it; if the agency exceeds its authority, the action is open to judicial review, and Congress may modify or revoke the authority entirely. A one-House veto is legislative in both character and effect and has none of those checks.H0H1

Two further accountability mechanisms are the procedures an agency must follow and the availability of judicial review. Whether a statute conditions the delegated power on procedural constraints such as mandatory public participation, or provides for judicial review that lets an independent judiciary check the use of delegated authority, may bear on whether the delegation is valid.⁴⁶ Safeguards that assure fair, informed decisionmaking can be crucial to the validity of a possibly overbroad delegation.⁴⁷ A standard and a procedure guard against different failures: the standard states what the recipient should aim at, and the procedure governs how the recipient reaches and explains a decision.

Courts accept broad grants in part for practical reasons. Relying too often on Congress to amend its own law carries a high decisional cost, and agencies with lower decision costs are often better than Congress at working through “a labyrinth of detail.”⁴⁸ Procedures and review help make that breadth tolerable.

The 1935 decisions show the Court counting missing procedure against the delegations it struck down. In both Panama Refining and Schechter, the Court placed considerable emphasis on the fact that the statutes did not require the President to use fair and open administrative procedures or to explain his decisions clearly.⁴⁹ The regulation at issue in Panama Refining had never been officially published, and shortly before argument it was discovered to have been accidentally amended out of existence, a defect that led Congress to require agencies to publish the official texts of their regulations in the Federal Register.⁵⁰ The NIRA did not require trial-type hearings or even notice and a right to participate for interested persons, and it provided no judicial review for those adversely affected.⁵¹

Those omissions mattered because of who wrote the rules. Industry groups drafted the codes that governed their own trades, so a competitor burdened by a code had no required hearing at which to contest it, no required explanation to attack, and no statutory route to a court. The procedural gap supplemented the substantive one, since the Court was concerned by the lack of both substantive and procedural standards.⁵² A complete answer on Schechter therefore mentions each gap.

Judicial review enters the analysis from the opposite direction, as the mechanism that gives a standard its practical value. In American Power & Light Co. v. SEC the Court treated a delegation as sufficient when Congress clearly delineates the general policy, the agency that applies it, and the boundaries of the authority, and it explained why: “Private rights are protected by access to the courts to test the application of the policy in the light of these legislative declarations.”⁵³ Yakus held that the statutory standards made review of agency action feasible because they gave courts a baseline for constraining that action.⁵⁴ The Yakus Court added that a constitutional problem would arise only if the legislation were so lacking in standards that “it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.”⁵⁵ The dependence runs one way: review protects private rights only because declared policy exists to test the agency's action against, so review and standards work as a pair and the first cannot stand in for the second.

A statute declaring that an order “is not subject to judicial review” looks as though it removes the court's check completely, but Touby v. United States shows why the words need a closer reading. Under a 1984 amendment to the Controlled Substances Act, the Attorney General could summarily issue a “temporary scheduling order” imposing strict regulatory controls on newly invented designer drugs, and a manufacturer prosecuted for violating such an order argued that the Act was an invalid delegation, in part because of the bar on review. The Court held that the bar referred only to pre-enforcement challenges, so a person facing criminal charges could still attack the order's validity as a defense to prosecution. By adopting that somewhat strained interpretation, the Court seemed to acknowledge that a literal reading might have raised serious doubts about the Attorney General's powers.⁵⁶ The choice was typical: the Court has declared legislation unconstitutional on delegation grounds on only two occasions, and courts more commonly interpret a statute in a way that makes the delegation acceptable and avoids a constitutional clash with Congress.⁵⁷ The scheduling power also carried specific substantive limits discussed earlier in this chapter, so the review point supplemented a real standard.

The NIRA stands at the opposite pole. It required no hearing and no notice to interested persons and gave those adversely affected no judicial review.⁵⁸ Both statutes gave an executive officer broad power, and the difference lay in whether the people burdened had a forum and a statutory measure to use there: the scheduling power kept both, and the code power supplied neither.

Procedures and review help less when the recipient is the President. A dissent in Clinton v. City of New York, considering the Line Item Veto Act's delegation to the President, acknowledged that agencies often develop subsidiary rules and are typically subject to judicial review, while the President has not narrowed his discretion by rule and is not subject to review under the Administrative Procedure Act. Those differences argued against the delegation, the dissent said, yet they were not determinative, because the President, unlike most agency decisionmakers, is an elected official answerable to voters, and judicial review is less appropriate when the President's own discretion rather than an agency's is at stake.⁵⁹ The Court's holding rested on bicameralism and presentment rather than on delegation, a ruling taken up later in this chapter.⁶⁰ The contrast limits how far the idea travels: a delegation to an agency draws support from the agency's rules and from reviewability, while a delegation to the President draws its accountability from the voters and from the office's own constitutional place, which the preceding subsection described.

Modern analysis therefore examines the whole set of controls and does not rest on the statutory phrase alone. Courts ask whether an administrative statute contains an intelligible principle on its face and also what other controls, substantive and procedural, limit agency power; the issue becomes whether the scheme taken as a whole fulfills the objective of the nondelegation doctrine, assuring adequate control and accountability in the exercise of official power.⁶¹ Each control answers a different risk. The standard keeps basic policy with Congress, procedure lets affected people be heard and exposes the agency's reasons, and review lets an independent court enforce the limits, so strength in one can partly cover a gap in another. Touby's narrow reading of the review bar is one form of the same technique, in which a court construes a statute to avoid constitutional difficulties; the later section on delegation as a canon of construction takes it up.⁶²

The controls make a thin standard more tolerable and do not replace a standard in every case. Procedure governs how a choice is made and cannot decide which choice Congress should have made, and review needs the statute's declared policy as its measure, as the two invented statutes above showed. A delegation with a thin standard and real procedures and review is easier to defend than one with a thin standard alone, and a delegation with no standard, no hearing, and no review follows the Schechter pattern.

The fourth step matters most on an exam. A stem that mentions available judicial review invites the conclusion that the delegation is safe, but review with no declared policy to apply is an empty forum, and the analysis returns to the first step.

Criminal Penalties

Grimaud, introduced earlier as an example of filling up the details, also shows how the doctrine treats rules enforced by criminal punishment. A statute 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 it supplied the punishment for violating them. The Secretary required sheep grazers to obtain a permit before grazing; a grazer who had none was indicted; and the Court held that the demurrer to the indictment should have been overruled.⁶⁶ The holding sustained regulations backed by criminal penalties.⁶⁷

The Court reasoned that the authority to make administrative rules is not a delegation of legislative power, and that such rules do not become legislative because breaking them is punished as a public offense.⁶⁸ The statute's own fixing of the penalty carries much of that reasoning. Congress chose the purpose that bounded the rules and chose the punishment, so the Secretary decided only which conduct within that purpose would draw a penalty Congress had already set. One modern formulation puts it this way: “Congress and the officer together make the crime, the officer acting within the intelligible limits established by Congress.”⁶⁹

That reasoning settles less than it seems to, because the Court has never held that the ordinary intelligible principle test suffices once rules carry criminal sanctions. In Touby the Court acknowledged that it is unclear whether “something more than an ‘intelligible principle’ is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions.”⁷⁰ The question stayed open because the scheduling power in that case was already confined by specific limits. Two concerns explain the doubt. Criminal sanctions implicate personal liberty,⁷¹ and when the official who writes a rule also decides whom to prosecute for breaking it, lawmaking and enforcement meet in one office.

Lower courts have split on the answer. Some have rejected any heightened standard, as the Eleventh Circuit did in United States v. Brown, while others treat the issue as open but uphold a delegation whose constraints resemble those found sufficient in Touby. The Second Circuit took the second course in United States v. Dhafir, where the presidential authority could be exercised only to deal with an unusual and extraordinary threat for which a national emergency had been declared.⁷² The second approach lets a court avoid choosing: if a statute's limits are as tight as the ones in Touby, the delegation passes under either test, so the open question matters only for a statute whose limits are looser.

The prosecutor's role in writing the rules has drawn different responses from the Court and from a dissenting Justice. Touby rejected the argument that the delegation had to run to someone other than the Attorney General, who wields the power to prosecute, because the argument “does not implicate separation of powers concerns; it merely challenges the wisdom of a legitimate policy judgment made by Congress.”⁷³ Gundy v. United States revived the concern. The Sex Offender Registration and Notification Act directed the Attorney General to decide how its registration system would apply to people convicted before the Act, and it imposed criminal liability on those who failed to comply. A four-Justice plurality upheld the provision because Congress had articulated a policy or standard confining the Attorney General's discretion, three Justices voted that the scheme unconstitutionally delegated Congress's power to define federal crimes, and Justice Alito indicated he was open to reconsidering Grimaud in a future case with all nine Justices participating.⁷⁴ Justice Gorsuch's dissent reasoned that if allowing the President to draft a “cod[e] of fair competition” for slaughterhouses was “delegation running riot,” it is hard to see how giving the nation's chief prosecutor the power to write a criminal code rife with his own policy choices could be permissible, and that Congress cannot give the executive branch “a blank check to write a code of conduct governing private conduct for a half-million people.”⁷⁵ Gundy may therefore have presaged a narrowing or overruling of Grimaud, and a later section takes the case up in full.⁷⁶

State courts show the contrast between valid and invalid criminal delegations most sharply. The Georgia Supreme Court in Howell v. State held that a statute declaring any person who violates any rule or regulation promulgated by the Department of Natural Resources guilty of a misdemeanor was an unlawful delegation under the state constitution. The Texas Court of Criminal Appeals in State v. Rhine took the opposite course with a statute that “declared a policy and set standards and limitations on the authority delegated,” because the legislature there defined the elements of the offense and left the agency to determine what outdoor burning was permissible in terms of what and where.⁷⁷ These rulings come from state high courts and do not bind a federal court, but they isolate the variable that Grimaud suggests matters. The blanket provision defines no offense itself and attaches a penalty to whatever the Department later decides to forbid, so the agency decides which conduct is criminal across its entire field. In the forest statute and the burning statute, the legislature defined the offense or fixed its boundaries and left the agency to fill in particulars within them.

When an exam stem describes an agency rule enforced by criminal sanctions, the first question is what the statute itself settled. If Congress stated the purpose, fixed the penalty, and left the agency to supply particulars, the delegation is defended as administrative rulemaking under the ordinary test, as in Grimaud. A strong answer then flags that Touby left open whether something more is required, notes that lower courts have split, and, where the officials who write the rule also prosecute violations, adds the concern pressed in the Gundy dissent. A provision that merely attaches punishment to whatever an agency chooses to forbid gives the agency the whole definition of the crime and holds the weakest position in this line of authority.