Also known as: intelligible principle standard · intelligible principle · intelligible principles · nondelegation doctrine · non-delegation standard
Written by attorneys — see sources below.
A constitutional requirement that Congress must articulate a guiding policy or standard when delegating regulatory authority to executive agencies or officers. The principle ensures that the agency’s discretion remains bounded by legislative direction rather than amounting to an abdication of legislative power.
Congress created the Manufacturing Standards Board and directed it to issue rules advancing modern industry by setting production methods and output quotas. The Board adopted nationwide quotas for all factories. Imperial Motors challenged the rules, arguing the statute left the Board without any guiding standard. The court struck down the delegation because the statute supplied no intelligible principle directing the Board’s discretion.
Congress authorized the Tariff Commission to adjust import duties on certain goods to equalize production costs between domestic and foreign manufacturers. The Commission raised duties on steel imports after studying cost data. Integrity Partners, an importer, sued claiming the statute gave the Commission unchecked power. The court sustained the delegation because the equalization directive channeled the Commission’s authority.
J. W. Hampton, Jr., & Company imported barium dioxide into New York. The collector of customs assessed the importation at a dutiable rate of six cents per pound. This was two cents per pound more than that fixed by statute under a presidential proclamation issued pursuant to section 315 of the Tariff Act of September 21, 1922. The proclamation was issued by President Calvin Coolidge on May 19, 1924, after the United States Tariff Commission conducted an investigation into differences in costs of production between the United States and Germany, the principal competing country. The investigation included a public hearing at which interested parties could present evidence. The proclamation recited that the statutory duty did not equalize those cost differences and raised the rate on barium dioxide to six cents per pound, within the fifty-percent limit allowed by the statute. Hampton protested the assessment and appealed under section 514 of the Tariff Act. The United States Customs Court heard the case and a majority upheld the assessment. Hampton then appealed to the United States Court of Customs Appeals, which affirmed the Customs Court judgment on October 16, 1926. The Attorney General certified that the case warranted Supreme Court review. Hampton petitioned for certiorari on May 10, 1927, and the Supreme Court granted the writ.
View caseCongress empowered the Petroleum Board to prohibit interstate shipment of oil produced in excess of state quotas. The Board banned shipments from several wells after receiving production reports. Panama Refining challenged the ban, asserting the statute contained no policy to limit the Board’s choices. The court struck down the delegation because the statute supplied no intelligible principle directing the Board’s discretion.
In June 1933 Congress enacted the National Industrial Recovery Act. Section 9(c) of Title I authorized the President to prohibit the transportation in interstate and foreign commerce of petroleum and its products. This prohibition applied when the petroleum was produced or withdrawn from storage in excess of amounts permitted by any state law or valid regulation. On July 11, 1933, the President issued an Executive Order prohibiting such transportation of excess petroleum. On July 14, 1933, he issued a further order authorizing the Secretary of the Interior to enforce the prohibition by designating agents, setting up boards, and promulgating rules and regulations. The Secretary of the Interior issued regulations on July 15, 1933, later amended on July 25 and August 21, 1933. These regulations required every producer, purchaser, shipper, and refiner of petroleum to file monthly sworn statements detailing residence, production locations, allowable and actual production, deliveries, and storage, and to maintain adequate books and records available for inspection. Panama Refining Company, a Delaware corporation engaged in refining crude oil and shipping it in interstate commerce, together with its Texas subsidiary and Amazon Petroleum Corporation along with other Texas oil producers, filed suits in federal district court in Texas against federal officials including the Administrator and Attorney General. The complaints alleged that the regulations restricted their interstate shipments of oil produced in compliance with Texas law. The District Court granted permanent injunctions against enforcement of the federal regulations and orders. The Circuit Court of Appeals reversed the decrees and directed that the bills be dismissed. The Supreme Court granted certiorari on October 8, 1934.
View caseCongress directed the EPA to set national ambient air quality standards requisite to protect public health. The EPA issued stringent limits on ozone and particulate matter. American Trucking Associations sued, contending the statute left the agency free to choose any level it wished. The court upheld the delegation because the public-health directive provided an intelligible principle guiding the EPA’s standard-setting.
In July 1997 the Administrator of the Environmental Protection Agency revised the national ambient air quality standards for particulate matter and ozone. American Trucking Associations, Inc., and its co-respondents, including the States of Michigan, Ohio, and West Virginia, challenged the new standards in the Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. § 7607(b)(1). The District of Columbia Circuit held that Section 109(b)(1) delegated legislative power to the Administrator in contravention of the Constitution because it provided no intelligible principle to guide the agency's exercise of authority. The court remanded the NAAQS to the agency for reconsideration. On rehearing the panel adhered to its position on the delegation point and on the implementation question, and it rejected the EPA's argument that the court lacked jurisdiction to reach the implementation question. The Administrator and the EPA petitioned the Supreme Court for review of the delegation, jurisdiction, and implementation questions. The respondents conditionally cross-petitioned for review of the costs question. The Supreme Court granted certiorari on both petitions in 2000 and consolidated the cases for decision. At the same time the EPA proposed the revised ozone NAAQS in 1996, it also proposed an interim implementation policy. After accepting comments, the White House published a memorandum prescribing implementation procedures, and the EPA announced in the preamble to its final ozone NAAQS that the provisions of subpart 1 of part D would apply to the implementation of the new standards.
View caseCongress authorized the National Marine Fisheries Service to adopt rules necessary and appropriate for fishery conservation. The Service set annual catch limits for several species. Loper Bright Enterprises challenged the limits, arguing the statute delegated legislative power without sufficient guidance. The court examined whether the conservation directive supplied an intelligible principle that constrained the agency’s rulemaking.
Before 1976, unregulated foreign vessels dominated fishing in the international waters off the U.S. coast, which began just 12 nautical miles offshore. Recognizing the resultant overfishing and the need for sound management of fishery resources, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act. The MSA and subsequent amendments extended the jurisdiction of the United States to 200 nautical miles beyond the U.S. territorial sea and claimed exclusive fishery management authority over all fish within that area, known as the exclusive economic zone. The National Marine Fisheries Service administers the MSA under a delegation from the Secretary of Commerce. The MSA established eight regional fishery management councils composed of representatives from the coastal States, fishery stakeholders, and NMFS. The councils develop fishery management plans, which NMFS approves and promulgates as final regulations. In service of the statute's fishery conservation and management goals, the MSA requires that certain provisions, such as a mechanism for specifying annual catch limits at a level such that overfishing does not occur, be included in these plans. The plans may also include additional discretionary provisions. Relevant here, a plan may also require that one or more observers be carried on board domestic vessels for the purpose of collecting data necessary for the conservation and management of the fishery. The MSA specifies three groups that must cover costs associated with observers: foreign fishing vessels, vessels in limited access privilege programs, and vessels in the North Pacific Council jurisdiction. In the latter two cases, the MSA expressly caps the fees for observers at two or three percent of the value of fish harvested on the vessels. The MSA does not contain similar terms addressing whether Atlantic herring fishermen may be required to bear costs associated with any observers a plan may mandate. At one point, NMFS fully funded the observer coverage the New England Fishery Management Council required in its plan for the Atlantic herring fishery. In 2013, however, the council proposed amending its fishery management plans to empower it to require fishermen to pay for observers if federal funding became unavailable. Several years later, NMFS promulgated a rule approving the amendment. With respect to the Atlantic herring fishery, the Rule created an industry-funded program that aims to ensure observer coverage on 50 percent of trips undertaken by vessels with certain types of permits. If NMFS determines that an observer is required but declines to assign a Government-paid one, the vessel must contract with and pay for a Government-certified third-party observer. NMFS estimated that the cost of such an observer would be up to $710 per day, reducing annual returns to the vessel owner by up to 20 percent. Petitioners Loper Bright Enterprises, Inc., H&L Axelsson, Inc., Lund Marr Trawlers LLC, and Scombrus One LLC are family businesses that operate in the Atlantic herring fishery. In February 2020, they challenged the Rule under the MSA, which incorporates the Administrative Procedure Act. The District Court granted summary judgment to the Government. A divided panel of the D.C. Circuit affirmed. The majority addressed provisions of the MSA concerning observer funding requirements and concluded that it was not wholly unambiguous whether NMFS may require Atlantic herring fishermen to pay for observers. Because there remained some question as to Congress's intent, the court proceeded to Chevron's second step and deferred to the agency's interpretation as a reasonable construction of the MSA. Petitioners Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC own two vessels that operate in the Atlantic herring fishery. These vessels use small-mesh bottom-trawl gear and can freeze fish at sea, so they can catch more species of fish and take longer trips than other vessels. The District Court, like the D.C. Circuit, deferred to NMFS's contrary interpretation under Chevron and thus granted summary judgment to the Government. The First Circuit affirmed. It relied on a default norm that regulated entities must bear compliance costs, as well as the MSA's sanctions provision. The court ultimately concluded that the Agency's interpretation of its authority to require at-sea monitors who are paid for by owners of regulated vessels does not exceed the bounds of the permissible. The Supreme Court granted certiorari in both cases, limited to the question whether Chevron should be overruled or clarified.
View caseCongress directed the Fish and Wildlife Service to issue regulations necessary to protect endangered species. The Service adopted rules requiring consultation on federal actions affecting distant habitats. Defenders of Wildlife sued to enforce broader consultation. The court assessed whether the statutory goal of species protection supplied an intelligible principle that bounded the Service’s discretion.
In 1973 Congress enacted the Endangered Species Act to protect species of animals against threats to their continuing existence caused by man. In 1978 the Fish and Wildlife Service and National Marine Fisheries Service issued a joint regulation interpreting section 7(a)(2) to require federal agencies to consult with the Secretary of the Interior on actions taken in foreign nations. In 1986 the Secretary promulgated a revised regulation that limited the consultation obligation to actions within the United States or on the high seas. Shortly after the 1986 regulation took effect, Defenders of Wildlife and other environmental organizations filed suit in the United States District Court for the District of Minnesota against the Secretary of the Interior. The complaint sought a declaratory judgment that the regulation was invalid as to its geographic scope and an injunction requiring the Secretary to promulgate a new regulation mandating consultation for foreign projects. The complaint alleged that the absence of consultation would increase the rate of extinction of endangered and threatened species. The complaint further alleged that some of the organizations' members observed these species both domestically and abroad. Respondents supported their allegations with affidavits from two members. Joyce Kelly stated that she had traveled to Egypt in 1986, observed the habitat of the endangered Nile crocodile, and intended to return. Kelly further stated that she would suffer harm from the United States role in the rehabilitation of the Aswan High Dam. Amy Skilbred stated that she had traveled to Sri Lanka in 1981, observed the habitat of endangered species including the Asian elephant and leopard at the site of the Mahaweli project funded by the Agency for International Development, and intended to return. Skilbred admitted she had no current plans to return because of a civil war. The District Court dismissed the complaint for lack of standing. The Court of Appeals for the Eighth Circuit reversed. On remand the District Court denied the Secretary's motion for summary judgment on standing. The District Court granted respondents' motion for summary judgment on the merits and enjoined the Secretary from applying the regulation to foreign countries. The Eighth Circuit affirmed. The Supreme Court granted certiorari.
View caseCongress must articulate a guiding policy or standard that channels agency discretion. The standard need not be detailed or specific. A broad objective such as protecting public health or advancing modern industry has been held sufficient when tied to defined regulatory subjects.
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No. The standard tolerates broad policy directives that leave implementation details to the agency. Courts have upheld delegations framed in terms of public interest, fair competition, or environmental protection without quantitative formulas.
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A statute fails when it supplies no policy at all and leaves the agency free to pursue any objective it chooses. Complete absence of a guiding principle allows the agency to exercise core legislative power, violating separation of powers.
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Procedural steps alone do not substitute for a substantive intelligible principle. Hearings and reporting obligations help ensure transparency but cannot supply the missing policy boundary on agency discretion.
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…in J. W. Hampton & Co. v. United States , 276 U. S. 394, 409 (1928): "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." In practice, however,…