Also known as: intelligible standards · intelligible principle
Written by attorneys — see sources below.
A guiding principle that Congress must supply when delegating rulemaking or regulatory authority to executive agencies or other branches. The principle must be sufficiently clear to permit courts to determine whether the agency has stayed within the bounds set by statute. Without such a standard the delegation would transfer core legislative power in violation of separation of powers.
Congress created the Manufacturing Standards Board and directed it to issue rules advancing modern industry. The Board adopted production quotas and workplace standards for factories nationwide. A family-owned plant challenged the delegation as lacking any guiding standard. The court invalidated the statute because the directive to advance modern industry failed to supply an intelligible standard that channeled the Board's discretion.
Congress authorized the EPA to set national ambient air quality standards requisite to protect public health. Industry groups argued the statute gave the agency unguided power. The court rejected the challenge because the health-protection directive provided an intelligible standard that cabined the agency's discretion.
In July 1997 the Administrator of the Environmental Protection Agency revised the national ambient air quality standards for particulate matter and ozone. American Trucking Associations, Inc., and its co-respondents, including the States of Michigan, Ohio, and West Virginia, challenged the new standards in the Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. § 7607(b)(1). The District of Columbia Circuit held that Section 109(b)(1) delegated legislative power to the Administrator in contravention of the Constitution because it provided no intelligible principle to guide the agency's exercise of authority. The court remanded the NAAQS to the agency for reconsideration. On rehearing the panel adhered to its position on the delegation point and on the implementation question, and it rejected the EPA's argument that the court lacked jurisdiction to reach the implementation question. The Administrator and the EPA petitioned the Supreme Court for review of the delegation, jurisdiction, and implementation questions. The respondents conditionally cross-petitioned for review of the costs question. The Supreme Court granted certiorari on both petitions in 2000 and consolidated the cases for decision. At the same time the EPA proposed the revised ozone NAAQS in 1996, it also proposed an interim implementation policy. After accepting comments, the White House published a memorandum prescribing implementation procedures, and the EPA announced in the preamble to its final ozone NAAQS that the provisions of subpart 1 of part D would apply to the implementation of the new standards.
View caseCongress authorized the President to prohibit interstate shipment of hot oil when production exceeded state quotas. The President banned all shipments from certain fields without further statutory direction. Producers challenged the action as an invalid delegation. The court invalidated the provision because the statute supplied no intelligible standard to guide the prohibition.
In June 1933 Congress enacted the National Industrial Recovery Act. Section 9(c) of Title I authorized the President to prohibit the transportation in interstate and foreign commerce of petroleum and its products. This prohibition applied when the petroleum was produced or withdrawn from storage in excess of amounts permitted by any state law or valid regulation. On July 11, 1933, the President issued an Executive Order prohibiting such transportation of excess petroleum. On July 14, 1933, he issued a further order authorizing the Secretary of the Interior to enforce the prohibition by designating agents, setting up boards, and promulgating rules and regulations. The Secretary of the Interior issued regulations on July 15, 1933, later amended on July 25 and August 21, 1933. These regulations required every producer, purchaser, shipper, and refiner of petroleum to file monthly sworn statements detailing residence, production locations, allowable and actual production, deliveries, and storage, and to maintain adequate books and records available for inspection. Panama Refining Company, a Delaware corporation engaged in refining crude oil and shipping it in interstate commerce, together with its Texas subsidiary and Amazon Petroleum Corporation along with other Texas oil producers, filed suits in federal district court in Texas against federal officials including the Administrator and Attorney General. The complaints alleged that the regulations restricted their interstate shipments of oil produced in compliance with Texas law. The District Court granted permanent injunctions against enforcement of the federal regulations and orders. The Circuit Court of Appeals reversed the decrees and directed that the bills be dismissed. The Supreme Court granted certiorari on October 8, 1934.
View caseCongress directed the Attorney General to decide how the Sex Offender Registration and Notification Act would apply to pre-enactment offenders. The Attorney General issued comprehensive registration rules. Offenders claimed the delegation lacked an intelligible standard. The court sustained the statute because the directive to apply the Act to prior offenders supplied a guiding principle.
In 2006 Congress enacted the Sex Offender Registration and Notification Act. The statute requires sex offenders to register in the jurisdictions where they live, work, and attend school. It also directs the Attorney General to specify the applicability of its requirements to offenders convicted before the Act’s enactment and to prescribe rules for their registration. At the time of enactment the nation’s population of sex offenders exceeded 500,000, and Congress left the treatment of these pre-Act offenders to the Attorney General after concluding that immediate application would impose costly burdens on states and localities. The Attorney General first left pre-Act offenders unregulated for six months after enactment. An interim rule issued in 2007 then required all pre-Act offenders to follow the same registration rules as post-Act offenders. Subsequent Attorneys General issued varying guidelines, with one directing states to register only some pre-Act offenders, another requiring registration only for those convicted of a new felony after enactment, and still others differing on whether pre-Act offenders could receive credit for time already spent in the community. Herman Gundy pleaded guilty in 2005 to possessing child pornography. He was released from prison five years later. He was arrested in 2012 for failing to register as a sex offender under the rules then prescribed for pre-Act offenders and faced an additional ten-year prison term. Gundy was convicted in 2012. He argued in the district court that Congress had unconstitutionally delegated legislative power when it authorized the Attorney General to specify the applicability of SORNA’s requirements. The district court rejected the argument. The Second Circuit affirmed, relying on its precedent that SORNA does not unconstitutionally delegate legislative authority. The Supreme Court granted certiorari.
View caseCongress authorized the Attorney General to temporarily schedule substances posing imminent hazards. The Attorney General scheduled a new synthetic drug. Importers challenged the delegation as standardless. The court upheld the provision because the imminent-hazard criterion furnished an intelligible standard limiting the Attorney General's discretion.
In 1970, Congress enacted the Controlled Substances Act, which establishes five schedules of controlled substances and regulates their manufacture, possession, and distribution. In 1984, Congress amended the Act to authorize the Attorney General to schedule substances temporarily when necessary to avoid an imminent hazard to public safety. The amendment allows the Attorney General to bypass several procedural requirements applicable to permanent scheduling, including the full notice-and-hearing provisions of the Administrative Procedure Act and consideration of all eight statutory factors. The Attorney General promulgated regulations delegating his powers under the Act, including temporary scheduling authority, to the Drug Enforcement Administration. Pursuant to that delegation, the DEA Administrator issued an order temporarily scheduling 4-methylaminorex, known as “Euphoria,” as a schedule I controlled substance, published in the Federal Register in 1987. The Administrator later initiated permanent scheduling procedures for the substance. While the temporary scheduling order remained in effect, DEA agents executed a search warrant at the home of Daniel and Lyrissa Touby and discovered a fully operational drug laboratory. The Toubys were indicted in the United States District Court for the District of New Jersey for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment, challenging the constitutionality of the temporary scheduling provision and the validity of the subdelegation to the DEA. The district court denied the motion to dismiss in 1989. Following their convictions, the Court of Appeals for the Third Circuit affirmed the convictions in 1990. The Supreme Court granted certiorari in 1991 to review the case.
View caseA state statute criminalized publication that exposed any race or class to contempt. A publisher was convicted for distributing a pamphlet attacking Black residents. The publisher argued the statute delegated legislative power without an intelligible standard. The court sustained the law because the prohibition on exposing groups to contempt supplied a sufficiently clear standard.
Joseph Beauharnais was president of the White Circle League of America. In January 1950 he arranged for the printing of several thousand copies of a leaflet in the form of a petition to the Mayor and City Council of Chicago. The leaflet called for segregation of the white and Negro races. It stated that the aggressions, robberies, rapes, and other acts of violence by Negroes were causing crimes that made it unsafe for white people to walk the streets. The leaflet also solicited membership in the White Circle League. On January 6, 1950, Beauharnais distributed bundles of the leaflets to volunteers at a meeting. He provided detailed instructions for street-corner distribution the next day. On January 7 the leaflets were in fact handed out on downtown Chicago corners. Beauharnais was arrested after the distribution began. He was charged with violating section 224a of the Illinois Criminal Code. The statute makes it unlawful to publish or exhibit in any public place any lithograph that portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed, or religion and thereby exposes such citizens to contempt, derision, or obloquy or is productive of breach of the peace or riots. At trial the evidence that Beauharnais had caused the leaflets to be published and distributed was undisputed. The court instructed the jury that it must return a guilty verdict upon a finding that he had manufactured, sold, offered for sale, advertised, published, presented, or exhibited the lithograph. The court refused a requested instruction requiring proof of a clear and present danger of serious substantive evil. The jury convicted Beauharnais. The judge imposed a fine of two hundred dollars. The Illinois Supreme Court affirmed the conviction. It held that the statute was a valid exercise of the state's police power. The United States Supreme Court granted certiorari.
View caseCongress must articulate an intelligible standard that guides the agency's exercise of discretion. Courts have upheld very general formulations such as advancing modern industry or protecting public health. The standard need not be detailed or quantitative.
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Yes. A directive to protect and enhance the nation's natural environment has been treated as an intelligible standard because it states an overarching policy goal and limits the agency to environmental regulation. Courts do not require more specific criteria.
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Yes, provided the intelligible standard guides the agency's discretion. The standard itself need not specify penalties. Congress may authorize the agency to define violations so long as the guiding principle remains in place.
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The delegation may be invalid. If the statute supplies no methodology or boundaries for balancing cost, reliability, and environmental goals, courts may conclude that Congress failed to provide an intelligible standard and transferred core legislative power.
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…in J. W. Hampton & Co. v. United States , 276 U. S. 394, 409 (1928): "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." In practice, however,…