The Delegation Problem
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- making function.
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.