The Constitution demands that the branches of government be separate so
each can provide checks and balances on the other two’s powers. The main
power of Congress is passing laws: “To make all laws which shall be necessary
and proper.” [U.S.C.S. Const. art. 1, § 8, para. 18.] An agency can only
exercise the power that Congress gives it. The early Supreme Court decisions
saw this as a problem to the extent that the agency transferred the power of
Congress to make laws to the executive branch. The court required that the
enabling legislation—the law establishing the agency—be sufficiently specific
to limit the agency’s discretion. Since early agencies were small and exercised
few powers, the courts were content to find that they did not usurp the law-
As federal agencies grew in power, the courts again became concerned with the
delegation issue. One of their concerns was that agencies could make rules
with the force of law behind closed doors without any citizen participation.
Congress addressed this with two laws. The Administrative Procedures Act
established rules for agency proceedings, including requiring agencies to give
the public notice of proposed rules and a chance to comment on the rules.
Congress also passed the Federal Freedom of Information Act, which requires
agencies to provide information to persons who request it, assuming that the
request is sufficiently specific and does not involve certain classes of
confidential information. These rules made agency proceedings more
democratic and allayed some of the court’s objections. Although the courts are
still concerned with delegation of congressional power, they have generally
accepted the broad modern role of agencies.