Article I, Section 1: General Principles

There are many contentious issues arising under Article I, Section 1, which vests Congress with “all legislative Powers herein granted.” I shall argue that the best reading of the Vesting Clause (Article I, Section 1) is captured by the concept of a delegation (rather than nondelegation) doctrine. Under this doctrine, Congress is the supreme lawmaker, and its limits on delegated authority must be strictly observed.

The Vesting Clause text is ambiguous, even read in light of the Constitution’s structure. See Thomas W. Merrill, Rethinking Article I, Section 1:  From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2114-39 (2004). One might read Article I, Section 1 to prohibit Congress from delegating the power to adopt rules having the effect of law (a broad reading of “legislative Powers”) or the power to pass statutes (a narrower reading). But one also might read the Vesting Clause to give Congress the supreme authority to make law, including the discretion to delegate lawmaking authority to other officials.

As early as the Marshall Court, judges have understood that Congress may delegate to other federal officials “powers which the legislature may rightfully exercise itself,” including the power to make rules with binding legal effect. Wayman v. Southard (1825). In the last century, the Court has confirmed that Congress may delegate lawmaking authority to other public officials but has insisted that Congress “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr., & Co. v. United States (1928).

Since 1935, the Court has never invalidated legislation for violating the so-called “nondelegation doctrine.” The intelligible principle limitation has either been leniently applied or considered unreviewable. In practice, there is no judicially enforceable nondelegation doctrine. Instead, Article I, Section 1 has been effectively interpreted to establish a delegation doctrine, whereby Congress has supreme lawmaking authority (subject to other constitutional limits), including the authority to delegate.

The Supreme Court’s unwillingness to give teeth to a nondelegation principle has potential constitutional costs: it frees Congress to slough off hard policy questions to other officials and may reduce the democratic accountability for policymaking. See, e.g., David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993). But these potential costs might be managed by a sober understanding of the delegation doctrine.  A standard expression is this one: “The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes.” Chrysler Corp. v. Brown (1979).   

Thus, judges will not readily find a delegation of lawmaking authority; a delegation must usually be explicit. More importantly, the delegation is subject to the limitations set forth or implicit in the congressional grant or in other statutory provisions. This understanding of the delegation doctrine is the conceptual foundation for the Supreme Court’s deference to agency rules that have the effect of law. United States v. Mead Corp. (2001) (the canonical understanding of the Chevron deference doctrine, whereby courts defer to an agency’s rules filling in an ambiguity in the statute it administers); see also Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984). 

Indeed, the democratic accountability concerns with a broad understanding of the delegation doctrine have been addressed by the Supreme Court’s review of agency actions pursuant to delegated lawmaking authority. To begin with, the Court insists that agencies engaged in legislative rulemaking follow the notice-and-comment procedures demanded by the Administrative Procedure Act, and which have been expanded by the Court itself. Motor Vehicle Manufacturers. Ass’n v. State Farm Mutual Auto. Ins. Co. (1983).

Additionally, the Supreme Court has inferred from Article I, Section 1 certain “quasi-constitutional” canons of statutory interpretation that limit agencies from usurping the power to make big policy moves beyond those authorized by Congress. Mistretta v. United States (1989); William N. Eskridge Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 607 (1992).

One such rule of construction is the major questions canon. Even if Congress has delegated to an agency general rulemaking or adjudicatory power, judges presume that Congress does not delegate its authority to settle or amend major social and economic policy decisions. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA (2014) (plurality opinion) (quoting FDA v. Brown & Williamson Tobacco Corp. (2000)); see also King v. Burwell (2015).

The major questions canon gives teeth to the Article I, Section 1 norm of congressional legislative supremacy, because it imposes a significant limit on agency lawmaking that is consistent with the assumptions of the congressional process. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside:  An Empirical Study of Congressional Drafting, Delegation, and Statutory Interpretation:  Part I, 65 Stan. L. Rev. 901, 1003-04 (2013). 

The primary concern with the major questions canon is that it is a standard judges might apply unevenly. But consider the alternative—namely, enforcement of a nondelegation doctrine. Lax enforcement, the Supreme Court’s practice when it even mentions the doctrine, is toothless and possibly worthless. Strict enforcement would impose huge governance costs. Statutory interpretation canons, such as the major questions canon, are probably the best balance the Court can render for the Article I, Section 1 norm.

Article I, Section 1 vests all legislative powers of the federal government in a bicameral Congress. As explained above, this is often read to include a principle that legislative power cannot be delegated to the other branches, to individual members of Congress, or to private actors. Despite the Supreme Court’s lack of direct enforcement and Congress’ transfer of power to administrative agencies within the Executive branch, I shall explain that the non-delegation principle has stubbornly persisted precisely because of its centrality to a republican form of government. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002).

The Constitution places the lawmaking powers of the government in a representative legislature. Following John Locke, the Framers recognized that the most legitimate form of government and the one providing the greatest security to liberty and property would vest the lawmaking power in “collective bodies of men.” John Locke, Second Treatise of Government § 94. James Madison and others frequently emphasized that lawmaking must be done by a sufficiently large group, not by an individual or “cabal.”

For the Framers, lawmaking by a representative bicameral Congress would serve a number of purposes. First, laws made by the people’s representatives would have legitimacy derived from the consent of the people. Second, by requiring members of Congress to deliberate and to compromise, the difficult process of lawmaking would promote laws aimed at the general good and equally applicable to all people. Third, laws made by a collective legislature would be more likely to avoid the dangers of small factions and special interests. Collective lawmaking would not be perfect, but, along with other constitutional safeguards, would minimize the dangers of oppressive legislation.

These features reinforce why “all legislative powers herein granted” are vested in Congress. The centrality of representative, legislative power suggests constitutional limits on the delegation of legislative power to the Executive, which lacks the collective multi-member representation necessary for lawmaking.

The Supreme Court has consistently reinforced the principle of non-delegation, recognizing that Article I, Section 1, of the Constitution “vests ‘all legislative Powers herein granted . . . in a Congress of the United states.’ This text permits no delegation of those powers . . . ” Whitman v. American Trucking Associations, Inc. (2001). In Panama Refining Co. v. Ryan (1935), it stated “in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend.”

The non-delegation principle serves as an important textual and structural limit on the federal government. Congress has limited and enumerated powers that confine the overall scope and power of the federal government to better preserve individual liberty. The non-delegation principle reinforces these limits. If widescale delegation is permissible, executive agencies have discretion to increase the reach of the federal government without going through the difficult process of bicameralism and presentment. Moreover, non-delegation reinforces separation of powers. Open-ended delegation allows  lawmaking to be combined with law execution (and adjudication) in executive agencies in a manner that raises questions about political accountability, constitutional limits, and due process.

Yet in practice, the non-delegation principle has been enforced largely in the breach. Since the New Deal, Congress has increasingly delegated open-ended authority to executive branch agencies. Despite consistent recognition of a principle of non-delegation, the Supreme Court has tolerated a significant transfer of power from Congress to executive agencies to make regulations. One reason for this is the difficulty of defining an unconstitutional delegation. The Executive power includes the power to interpret and to implement the law when applying it to particular circumstances; however, the Executive power does not include the power to make the law.

As Justice Black famously explained, “[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. . . . And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States.’” Youngstown Sheet & Tube Co. v. Sawyer (1952). The difficulty arises in determining when the Executive is legislating, which is impermissible, and when the Executive is implementing statutory directives.

The Court has also declined direct enforcement of the non-delegation doctrine because it has analyzed non-delegation as a structural principle that should be checked by competition between Congress and the President. As Justice Scalia explained, “Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. . . . Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power.” Mistretta v. United States (1989) (Scalia, J., dissenting).

Why would Congress delegate so much power to the President, its rival for political power? Increased political polarization and the desire to avoid responsibility for difficult choices provide some explanation. In addition, delegation may empower members of Congress to control administration by influencing administrative agencies, allowing them to enhance their individual power through collusion with agencies. See Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). Delegation may unravel the competitive tension between Congress and the President, undermining an important structural check on legislative power.

Widespread delegation to the executive has weakened Congress as an institution and made it difficult for Congress to check the Executive. The unitary Executive possesses all of the structural advantages of quick action over Congress. Once authority has been delegated, Congress has fewer mechanisms to oversee the Executive.

Non-delegation remains “a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark (1892). A few justices have argued for greater enforcement of the non-delegation doctrine to provide a check on executive branch agencies exercising delegated power. For instance, Justice Thomas has written that the judiciary’s failure to enforce the nondelegation doctrine comes at the “cost [of] our Constitution and the individual liberty it protects.” Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring in the judgment).

Given the importance of non-delegation, courts should provide greater scrutiny of delegations of legislative power. Yet the non-delegation principle cannot depend solely on judicial review. Congress is vested with the legislative power. Article I, Section 1 of the Constitution provides for the essential and central role of Congress in a republican form of government, even after the rise of the modern administrative state.