The Intelligible Principle: How It Briefly Lived, Why It Died, and Why It Desperately Needs Revival in Today’s Administrative State

By Dunigan, Meaghan | St. John's Law Review, April 1, 2017 | Go to article overview

The Intelligible Principle: How It Briefly Lived, Why It Died, and Why It Desperately Needs Revival in Today’s Administrative State


Dunigan, Meaghan, St. John's Law Review


Introduction

The nondelegation doctrine stands for the principle that the United States Constitution places limits on the kind and quantity of discretion that Congress can grant to other government actors. For the last century, the nondelegation doctrine has rarely been invoked to strike down congressional delegation of legislative authority, as the United States Supreme Court has repeatedly deferred to Congress and administrative agencies instead of upholding constitutional principles.1 The current standard of review for nondelegation cases is the "intelligible principle," first articulated by the Supreme Court in J.W. Hampton, Jr., & Co. v. United States.2 This standard mandates that so long as Congress sets forth an "intelligible principle to which the person or body authorized ... is directed to conform, such legislative action is not a forbidden delegation of legislative power."3 While the intelligible principle was initially established as a means of upholding the constitutional roots of nondelegation, decades of caselaw prove that this standard has become a veiled attempt by the Supreme Court to uphold congressional delegation not because it is consistent with constitutional principles, but because the alternative-striking down delegation-is not a viable option given the size and scope of today's government, most notably the growth of administrative agencies which have largely assumed the role of legislators.4

This Note addresses the flaws in the current intelligible principle standard and proposes a new three-part standard that would better revitalize the intelligible principle as it was first articulated almost a century ago. This Note concedes that while legislative delegation in any form is a violation of the original meaning of the nondelegation doctrine,5 our society and the growth of administrative agencies removed any chance of having our laws created solely by Congress.6 What can happen, and what this Note proposes, is for the Supreme Court to adopt a new intelligible principle standard that scales back the amount of authority being placed in the hands of those outside Capitol Hill.

Part I of this Note discusses the origins of congressional delegation and the constitutional principles that underlie the nondelegation doctrine. Part II discusses the creation of the intelligible principle, from its inception in J.W. Hampton to subsequent cases in the 1930's that defined the standard's limits. Part III discusses the breakdown of the intelligible principle, from the growth of administrative agencies to three significant mistakes made by the Supreme Court that have effectively rendered the standard meaningless. Finally, Part IV proposes a new three-part intelligible principle standard; a standard that recovers the original purpose of the nondelegation doctrine while also adapting to the immense changes that our government structure has undergone since the doctrine's inception over 225 years ago.

I. The Roots of Nondelegation

The Vesting Clause of the United States Constitution states that "[a] 11 legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."7 While the meaning of "legislative power" has been the subject of scholarly debate,8 its general understanding comes from the father of the Federalist Papers, Alexander Hamilton.9 Hamilton defined legislative power as the power of making laws, or the right "to prescribe rules for the regulation of society."10 Based on this understanding, the Article I Vesting Clause places the sole authority of lawmaking in the hands of Congress; as a consequence, the nondelegation doctrine holds Congress may not delegate its lawmaking authority to any other branch. While rooted in the Vesting Clause, the importance of the nondelegation doctrine stems from two essential principles that have stood as constitutional underpinnings-the accountability of Congress to the people and the separation of powers doctrine. …

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