The Intelligible Principle Test

The Intelligible Principle Test

A delegation of legislative power is valid so long as Congress lays down by legislative act an "intelligible principle" to which the recipient is directed to conform. J.W. Hampton, Jr. & Co. v. United States (1928) supplied that formula, and later opinions quote it as the governing test.¹ An intelligible principle is a standard written into the statute itself, one that tells the recipient what policy to pursue and where its authority stops. Congress must be the one to write it. Article I vests all legislative powers in Congress, the Court reads that text to permit no delegation of them, and so whenever Congress confers decisionmaking authority on an agency, Congress itself must lay down the principle the agency is to follow.²

The test changed what a court examines. The early formulas asked what name fit the executive's work: an officer who was said to do nothing more than ascertain the event on which a statute would take effect, or "fill up the details," was not legislating. The labels often misdescribed the cases, because the executive in them was exercising a substantial measure of policy judgment.³ As the modern industrial economy grew and demands for regulation grew with it, the narrow formulas proved too restrictive even when read liberally, and judicial inquiry shifted to whether the legislature had supplied sufficient standards to limit the scope of agency discretion.⁴ The intelligible principle test puts that question to the statute. A court can answer it from the statute's text, without relying on anyone's description of what an official did, because whether a statute delegates legislative power is a question for the courts.⁵

Hampton settled the question to ask but left the degree open. Little else about the operative test was made clear by the ruling, particularly how "intelligible" the statutory directive must be.⁶ Later sections show how the Court has answered. Whatever degree the test demands, a statutory principle does three jobs, each for a different participant:⁷

• For Congress, the principle is the policy it has decided for itself. Congress may delegate the power to enact legislative rules, but it may not forfeit its core authority to make public policy determinations.
• For the agency, the principle guides the exercise of the delegated power. An official who knows the objective and the limits can choose among options by reference to Congress's aim and not to a personal preference.
• For the courts, the principle supplies a standard for deciding whether the agency acted within the confines of the delegation. Without a stated principle, a reviewing court has nothing to measure the agency's action against.

Mistretta states the requirement in three parts. Quoting American Power & Light Co. v. SEC (1946), the Court said it is "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."⁸ Each part answers its own question about the statute. The general policy tells what Congress wants accomplished, the agency identifies who is to accomplish it, and the boundaries say how far that body may go. A statute that omits one leaves a gap for the recipient's judgment to fill.

The second step rarely causes trouble, since a statute almost always names its agency. Steps one and three carry the weight, and step four tests whether they carry it: a stated policy and stated limits matter only if they give a reviewer something to measure against.⁹

Yakus v. United States passes the checklist. The wartime price-control statute let an Administrator fix prices that were "generally fair and equitable" and that would effectuate the Act's enumerated purposes, and the Court said a constitutional problem would arise only if the statute lacked standards so completely that "it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed."¹⁰ The words were broad, yet a court could ask of any challenged price whether it was fair and equitable and served the Act's purposes.

A.L.A. Schechter Poultry Corp. v. United States fails at step four. The National Industrial Recovery Act let the President approve codes of fair competition for particular industries if a code tended to effectuate the policy of the title, but the Act's declared goals pulled against one another and said nothing about how to weigh them.¹¹ A code could be defended by pointing to one stated goal and attacked by pointing to another, so no court could say that a code went too far. Both statutes used broad words. What separates them is that the purposes in Yakus gave a court a measure for each price, while the competing purposes in Schechter gave it none. The next section takes up Schechter's holding in full.

The principle must come from the statute, and an agency cannot supply it afterward. Whitman v. American Trucking Associations, Inc. states the rule: the Court has never suggested that an agency can cure an unlawful delegation of legislative power by adopting, in its discretion, a limiting construction of the statute.¹² The reason lies in what legislating is. The choice of which portion of the power to exercise is the prescription of the very standard Congress omitted, so that choice would itself be an exercise of the forbidden legislative authority. Whether a statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing on the answer.¹³

The test sets a minimum, and the reason is practical. The Court describes its delegation cases as driven by an understanding that in a complex society with ever-changing and more technical problems, Congress cannot do its job without the ability to delegate under broad general directives.¹⁴ Congress therefore does not violate the Constitution merely by legislating in broad terms and leaving executive or judicial actors a degree of discretion, and the rise of the modern state has made broad delegations well-nigh unavoidable.¹⁵ The Sentencing Reform Act in Mistretta sits well above the floor. The Court found that it set forth more than merely an intelligible principle or minimal standards, because it outlined the policies behind the Commission, explained what the Commission should do and how, and set out specific directives for particular situations.¹⁶ In checklist terms, that statute answers all three questions at length. Statutes that fall below the floor are rare. The Court has declared legislation unconstitutional on delegation grounds on only two occasions, and courts more commonly read a statute so that the delegation it makes is acceptable.¹⁷ The test therefore asks Congress for a principle and not for exhaustive detail, and it places the burden of supplying that principle on Congress.