Also known as: intelligible standard · intelligible principle
Written by attorneys — see sources below.
A guiding directive that Congress must supply when delegating regulatory authority to executive agencies or commissions. The directive must be sufficiently clear to permit courts to determine whether the agency has followed the law and to prevent the agency from exercising unfettered policy-making power.
Congress enacted the Learning Advancement Act directing the National Education Board to promote effective and inclusive education in federally funded schools. The Board then issued nationwide curriculum and teacher-evaluation standards. A charter network challenged the delegation as lacking sufficient guidance. The court upheld the statute because the stated goal supplied an intelligible standard channeling the Board's discretion.
Congress directed the EPA to set national ambient air quality standards requisite to protect public health. The agency issued stringent limits on ozone and particulate matter. Industry groups argued the statute conferred unguided power. The court rejected the challenge, holding that the health-protection directive constituted an intelligible standard guiding the EPA's rulemaking.
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 President to prohibit interstate shipment of petroleum produced in excess of state quotas. The President issued regulations banning hot oil without further statutory criteria. Producers challenged the rules. The court invalidated the delegation because the statute supplied no intelligible standard limiting executive 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 Attorney General to apply the Sex Offender Registration and Notification Act to pre-enactment offenders. The Attorney General issued registration rules. An offender claimed the statute lacked an intelligible principle. The court sustained the delegation because the Act's purpose of protecting the public from sex offenders provided adequate guidance.
In 2006 Congress enacted the Sex Offender Registration and Notification Act. The statute requires sex offenders to register in the jurisdictions where they live, work, and attend school. It also directs the Attorney General to specify the applicability of its requirements to offenders convicted before the Act’s enactment and to prescribe rules for their registration. At the time of enactment the nation’s population of sex offenders exceeded 500,000, and Congress left the treatment of these pre-Act offenders to the Attorney General after concluding that immediate application would impose costly burdens on states and localities. The Attorney General first left pre-Act offenders unregulated for six months after enactment. An interim rule issued in 2007 then required all pre-Act offenders to follow the same registration rules as post-Act offenders. Subsequent Attorneys General issued varying guidelines, with one directing states to register only some pre-Act offenders, another requiring registration only for those convicted of a new felony after enactment, and still others differing on whether pre-Act offenders could receive credit for time already spent in the community. Herman Gundy pleaded guilty in 2005 to possessing child pornography. He was released from prison five years later. He was arrested in 2012 for failing to register as a sex offender under the rules then prescribed for pre-Act offenders and faced an additional ten-year prison term. Gundy was convicted in 2012. He argued in the district court that Congress had unconstitutionally delegated legislative power when it authorized the Attorney General to specify the applicability of SORNA’s requirements. The district court rejected the argument. The Second Circuit affirmed, relying on its precedent that SORNA does not unconstitutionally delegate legislative authority. The Supreme Court granted certiorari.
View caseIllinois enacted a statute criminalizing publications that portray defined groups as criminal or lacking virtue. A publisher was convicted for distributing such materials. The defendant argued the statute delegated excessive power to prosecutors. The court upheld the law, finding that its prohibition on false statements exposing groups to contempt supplied an intelligible standard.
Joseph Beauharnais was president of the White Circle League of America. In January 1950 he arranged for the printing of several thousand copies of a leaflet in the form of a petition to the Mayor and City Council of Chicago. The leaflet called for segregation of the white and Negro races. It stated that the aggressions, robberies, rapes, and other acts of violence by Negroes were causing crimes that made it unsafe for white people to walk the streets. The leaflet also solicited membership in the White Circle League. On January 6, 1950, Beauharnais distributed bundles of the leaflets to volunteers at a meeting. He provided detailed instructions for street-corner distribution the next day. On January 7 the leaflets were in fact handed out on downtown Chicago corners. Beauharnais was arrested after the distribution began. He was charged with violating section 224a of the Illinois Criminal Code. The statute makes it unlawful to publish or exhibit in any public place any lithograph that portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed, or religion and thereby exposes such citizens to contempt, derision, or obloquy or is productive of breach of the peace or riots. At trial the evidence that Beauharnais had caused the leaflets to be published and distributed was undisputed. The court instructed the jury that it must return a guilty verdict upon a finding that he had manufactured, sold, offered for sale, advertised, published, presented, or exhibited the lithograph. The court refused a requested instruction requiring proof of a clear and present danger of serious substantive evil. The jury convicted Beauharnais. The judge imposed a fine of two hundred dollars. The Illinois Supreme Court affirmed the conviction. It held that the statute was a valid exercise of the state's police power. The United States Supreme Court granted certiorari.
View caseCongress authorized the Attorney General to temporarily schedule substances posing imminent hazards to public safety. The Attorney General scheduled a new designer drug. A defendant challenged the delegation. The court upheld the statute because the public-safety and imminent-hazard criteria furnished an intelligible standard guiding the Attorney General's temporary scheduling decisions.
In 1970, Congress enacted the Controlled Substances Act, which establishes five schedules of controlled substances and regulates their manufacture, possession, and distribution. In 1984, Congress amended the Act to authorize the Attorney General to schedule substances temporarily when necessary to avoid an imminent hazard to public safety. The amendment allows the Attorney General to bypass several procedural requirements applicable to permanent scheduling, including the full notice-and-hearing provisions of the Administrative Procedure Act and consideration of all eight statutory factors. The Attorney General promulgated regulations delegating his powers under the Act, including temporary scheduling authority, to the Drug Enforcement Administration. Pursuant to that delegation, the DEA Administrator issued an order temporarily scheduling 4-methylaminorex, known as “Euphoria,” as a schedule I controlled substance, published in the Federal Register in 1987. The Administrator later initiated permanent scheduling procedures for the substance. While the temporary scheduling order remained in effect, DEA agents executed a search warrant at the home of Daniel and Lyrissa Touby and discovered a fully operational drug laboratory. The Toubys were indicted in the United States District Court for the District of New Jersey for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment, challenging the constitutionality of the temporary scheduling provision and the validity of the subdelegation to the DEA. The district court denied the motion to dismiss in 1989. Following their convictions, the Court of Appeals for the Third Circuit affirmed the convictions in 1990. The Supreme Court granted certiorari in 1991 to review the case.
View caseCongress need only articulate a general policy goal or directive that guides agency discretion. Broad phrases such as promoting effective education, protecting public health, or advancing productive industrial operations have been held sufficient.
A statute fails when it states only an open-ended objective such as advancing modern industry without identifying concrete policy goals, priorities, or boundaries that constrain agency choices among production methods, quotas, or other regulatory tools.
No. Procedural mandates do not substitute for a substantive intelligible standard that limits the agency's policy choices. The statute must still articulate a guiding principle that channels the agency's substantive discretion.
Courts examine the statute's text and structure to decide whether Congress has supplied a principle clear enough to allow judicial review of agency compliance and to prevent the agency from making fundamental policy decisions on its own.
…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,…