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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...