Nondelegation doctrine

The origins of the nondelegation doctrine, as interpreted in U.S., can be traced back to, at least, 1690, when John Locke wrote:

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. ... And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.[10]

One of the earliest cases involving the exact limits of nondelegation was Wayman v. Southard (1825).[11] Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details. Marshall wrote that "a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details." In 1892, the Court in Field v. Clark, 143 U.S. 649, noted "That congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution"[12] while holding that the tariff-setting authority delegated in the McKinley Act "was not the making of law," but rather empowered the executive branch to serve as a "mere agent" of Congress.[12]

During the 1930s, Congress provided the executive branch with wide powers to combat the Great Depression. The Supreme Court case of Panama Refining v. Ryan, 293 U.S. 388 (1935) involved the National Industrial Recovery Act, which included a provision granting the President the authority to prohibit the interstate shipment of petroleum in excess of certain quotas. In the Panama Refining case, however, the Court struck down the provision on the ground that Congress had set "no criterion to govern the President's course."

Other provisions of the National Industrial Recovery Act were also challenged. In Schechter Poultry Corp. v. United States (1935), the Supreme Court considered a provision which permitted the President to approve trade codes, drafted by the businesses themselves, so as to ensure "fair competition." The Supreme Court found that, since the law sets no explicit guidelines, businesses "may roam at will and the President may approve or disapprove their proposal as he may see fit." Thus, they struck down the relevant provisions of the Recovery Act.

In the 1989 case Mistretta v. United States,[13] the Court stated that:

Applying this "intelligible principle" test to congressional delegations, our 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. Accordingly, this Court has deemed it "constitutionally sufficient" if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

The Supreme Court has never found a violation of the nondelegation doctrine outside of Panama Refining and Schechter Poultry in 1935. Exemplifying the Court's legal reasoning on this matter, it ruled in the 1998 case Clinton v. City of New York that the Line Item Veto Act of 1996, which authorized the President to selectively void portions of appropriation bills, was a violation of the Presentment Clause, which sets forth the formalities governing the passage of legislation. Although the Court noted that the attorneys prosecuting the case had extensively discussed the nondelegation doctrine, the Court declined to consider that question. However, Justice Kennedy, in a concurring opinion, wrote that he would have found the statute to violate the exclusive responsibility for laws to be made by Congress.

• Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813)
• Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)
• Field v. Clark, 143 U.S. 649 (1892)
• Buttfield v. Stranahan, 192 U.S. 470 (1904)
• United States v. Grimaud, 220 U.S. 506 (1911)
• Mahler v. Eby, 264 U.S. 32 (1924)
• J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1926)
• New York Central Securities Corp. v. United States, 287 U.S. 12 (1932)
• Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)
• A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
• Carter v. Carter Coal Co., 298 U.S. 238 (1936)
• United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
• Currin v. Wallace, 306 U.S. 1 (1939)
• Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940)
• OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor, 312 U.S. 126 (1941)
• National Broadcasting Co. v. United States, 319 U.S. 190 (1943)
• Yakus v. United States, 321 U.S. 414 (1944)
• Lichter v. United States, 334 U.S. 742 (1948)
• U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)
• National Cable Television Assn. v. United States, 415 U.S. 336 (1974)
• FPC v. New England Power Co., 415 U.S. 345 (1974)
• Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548 (1976)
• United States v. Batchelder, 442 U.S. 114 (1979)
• Industrial Union Department v. American Petroleum Institute, 448 U.S. 607 (1980)
• American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981)
• Mistretta v. United States, 488 U.S. 361 (1989)
• Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989)
• Touby v. United States, 500 U.S. 160 (1991)
• Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252 (1991)
• Loving v. United States, 517 U.S. 748 (1996)
• Clinton v. City of New York, 524 U.S. 417 (1998)
• Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001)
• Department of Transportation v. Association of American Railroads, No. 13-1080, 575 U.S. ___ (2015)
• Coventry Health Care of Mo., Inc. v. Nevils, No. 16-149, 581 U.S. ___ (2017)
• Gundy v. United States, No. 17-6086, 588 U.S. ___ (2019)
• Paul v. United States, No. 17-8830, 589 U.S. ___ (2019)
• Haaland v. Brackeen, No. 21-376, 599 U.S. ___ (2023)
• SEC v. Jarkesy, No. 22-859, 601 U.S. ___ (2024)

The major questions doctrine is a rough analogue to the nondelegation doctrine. It says that when a government agency seeks to decide an issue of "vast economic or political significance," a vague or general delegation of authority from Congress is not enough. Rather, the agency must have clear statutory authorization to decide the issue.[14]

The major questions doctrine serves as an exception to the Chevron doctrine, which ordinarily requires courts to defer to an agency's interpretation of a statute it enforces, so long as the statute is ambiguous and the agency's interpretation is reasonable. However, it goes further than just negating deference to the agency. Even if the most reasonable interpretation of the statute allows the agency to take an action, it will not be enough unless that delegation of authority is clearly stated.

In explaining the major questions doctrine in UARG v. EPA (2014), the Supreme Court explained that "We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'"[15] Similarly, in Whitman v. American Trucking Associations (2001), the Court stated that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”[16]

The Supreme Court first explicitly embraced the phrase "major questions doctrine" in West Virginia v. Environmental Protection Agency (2022),[17] the decision which held that the EPA's Clean Power Plan, requiring energy producers to shift from fossil fuels to renewable sources, was not authorized by the Clean Air Act.[18]

With the Inflation Reduction Act of 2022, some commentators argued that Congress overruled the Court by clarifying that carbon dioxide is one of the pollutants covered by the 1970 Clean Air Act.[19] However, the Supreme Court had already held that greenhouse gasses are pollutants in Massachusetts v. EPA (2007), and the Supreme Court did not overrule that holding in West Virginia v. EPA.[20]

• MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994)
• FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)
• Gonzales v. Oregon, 546 U.S. 243 (2006)
• Utility Air Regulatory Group v. Environmental Protection Agency, 573 U.S. 302 (2014)
• King v. Burwell, No. 14-114, 576 U.S. ___ (2015)
• Gundy v. United States, No. 17-6086, 588 U.S. ___ (2019) (Gorsuch, dissenting) (dicta)
• Alabama Assn. of Realtors v. Department of Health and Human Servs., No. 21A23, 594 U.S. ___ (2021)
• Biden v. Missouri, No. 21A240, 595 U.S. ___ (2022)
• National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, No. 21A244, 595 U.S. ___ (2022)
• West Virginia v. EPA, No. 20-1530, 597 U.S. ___ (2022)
• Biden v. Nebraska, No. 22-506, 600 U.S. ___ (2023)

English courts have made a distinction between seeking consultation and the delegation of powers, the former of which is deemed to be permissible as decision making does not happen within an "institutional bubble".[23] The important factor in deciding whether a public body is seeking consultation or whether they have delegated those powers is examining whether the powers are ultimately at the hands of the decision-maker in practice, as opposed to de jure.[23]

In R (New London College) v Secretary of State for the Home Department [2013] UKSC 51, the Supreme Court held that the Home Secretary did not unlawfully delegate her powers to control entry into the UK to sponsoring institutions. Immigration rules dictated that all student visa applicants had to produce a "Confirmation of Studies" (CAS) which is produced by sponsoring institutions like universities. As part of the application process, institutions must make judgements whether they had an intention to study there. The Supreme Court rejected arguments that this was tantamount to the delegation of powers to sponsoring institutions. Lord Sumption, in his judgment, noted that "a significant number of Tier 4 (General) migrants with a CAS are in fact refused leave to enter or remain on these grounds".[24] This, according to the Supreme Court, showed that the Home Secretary de facto exercised powers of final decision and therefore was merely consulting sponsoring institutions, not delegating her powers.[23]

The Carltona doctrine (or Carltona principle) is the idea that when powers are granted to departmental officials, they can be lawfully delegated to their civil servants.[25]