The Legislative Vesting Clause

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

—Gary S. Lawson

Introduction

The Legislative Vesting Clause defines the bicameral legislature; indicates, in conjunction with the other vesting clauses, that there are distinct kinds of governmental powers; and suggests that Congress has only limited powers that are “herein granted.” The Legislative Vesting Clause may also define which branches of the federal government can exercise the different types of federal power.

Constitutional Functions of the Legislative Vesting Clause

The Legislative Vesting Clause performs several critical constitutional functions. First, it defines the Congress as “a Senate and House of Representatives.” This bicameral (two-chamber) structure was proposed in the earliest days of the Constitutional Convention and carried through to the final version of the document, notwithstanding an unsuccessful proposal for a unicameral legislature in the New Jersey Plan.¹ Nine of the 11 states that adopted constitutions before 1787 provided for bicameral legislatures, and the two holdouts (Pennsylvania and Georgia) went bicameral by 1791.² Today, every state except Nebraska has a bicameral legislature.

Second, by vesting a specific kind of power in a specific institution, the Legislative Vesting Clause, along with its counterpart vesting clauses in Articles II and III, communicates that there are distinct types of governmental powers. Madison explained in Federalist No. 48 that these powers “may in their nature be legislative, executive or judiciary.” John Adams agreed, declaring that the “three branches of power have an unalterable foundation in nature; that they exist in every society natural and artificial. . . .”³ The Constitution’s entire scheme is built around this tripartite classification of governmental powers. However, Madison also acknowledged in Federalist No. 37 that not every exercise of governmental power can be neatly and easily placed into a legislative, executive, or judicial category. Rather, the Framers, along with contemporaneous framers of state constitutions, seemed to assume that such a distinction can be drawn in enough cases to make the constitutional system function.

Third, the Legislative Vesting Clause refers to “[a]ll legislative Powers herein granted” rather than to “[a]ll legislative Powers” in the abstract. This phrasing could be taken to mean that Congress is not vested with all legislative powers in the abstract, but only with those particular legislative powers “herein granted” by the Constitution. On this reading, the Legislative Vesting Clause serves as a textual reminder that Congress can exercise only an enumerated subset of the general category of “legislative Powers.”

This reading of the “herein granted” language as a source for the doctrine of enumerated powers has been vigorously challenged. Some scholars contend that this approach overreads the language, begs important textual questions, and has little historical support in Founding-era materials.⁴ On July 17, 1787, by a margin of 8 to 2, the Convention voted in favor of a version of the Legislative Vesting Clause that gave Congress power, among other things, “[t]o make laws binding on the People of the United States in all cases which may concern the common interests of the Union: and moreover to legislate in all cases for the general interests of the Union. . . .”⁵ This resolution could be read as endorsing a grant of general legislative power, or it might have been a placeholder and guide for the more specific enumerations of power that later emerged from the Committee of Detail and ultimately became Article I, Section 8 of the Constitution.

In any event, as Chief Justice John Marshall observed in McCulloch v. Maryland (1819), the federal government “is acknowledged by all to be one of enumerated powers”⁶ even if the precise role of the Legislative Vesting Clause as support for that doctrine remains uncertain. Other provisions of the Constitution, including the overall structure of Article I, the language of the Tenth Amendment, and background principles of constitutionalism, may play a role in supporting the doctrine of enumerated powers. United States v. Lopez (1995) reaffirmed that “[t]he Constitution creates a Federal Government of enumerated powers.”⁷ In doing so, the Supreme Court cited Article I, Section 8, which lists Congress’s expressly enumerated powers, rather than the Legislative Vesting Clause in Article I, Section 1.

Fourth, one might also conclude that the Legislative Vesting Clause specifies who can exercise any constitutionally granted legislative powers within the federal government. Those powers can be exercised only by Congress, the body in whom those powers are vested, and not by any other federal actor such as the President, a federal judge, or an administrative agency. The Constitution, however, does not expressly circumscribe the lines that separate the legislative, executive, or judicial powers. Few laws can be crafted so precisely as to leave nothing of consequence to the discretion of executive or judicial actors. It is commonplace, and perhaps unavoidable, for executive and judicial actors to need to interpret enacted laws in the course of their duties. But the formal exercise of executive or judicial interpretation could become so extensive in shaping the meaning of a law that the executive or judicial actor in reality becomes the lawmaker. That is the essence of the delegation problem.

Some scholarship has questioned whether and how the Constitution constrains the kind and quality of discretion that Congress may grant to other actors. Scholars have pointed out that the sparse language of the Legislative Vesting Clause does not expressly forbid or permit delegation and that no other clause expressly addresses the question. In the absence of a specific text, much of the scholarship has focused on early congressional practice. Some of that scholarship argues that early practice does not support a broad nondelegation principle that would lead to sweeping changes in current doctrine.⁸ Other originalist scholarship is more supportive of a vigorous delegation principle.⁹

Scholars sometimes look to background principles as well as practice. John Locke, for example, wrote that “[t]he legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.”¹⁰ In the language of the private law of agency, Locke’s principle describes subdelegation rather than delegation.¹¹ Justice Neil Gorsuch, in particular, has cited Locke as “one of the thinkers who most influenced the framers’ understanding of the separation of powers.”¹² The Constitution undeniably delegates legislative powers from “We the People” to Congress, so perhaps the better framing of the issue is whether the Constitution then permits subdelegation from Congress to others. The cases, however, consistently speak of congressional delegation and nondelegation.

Legislative Delegation on the Marshall Court

Wayman v. Southard (1825) was the Supreme Court’s first major encounter with the question of legislative delegation (or subdelegation).¹³ A congressional statute fixed court rules for such matters as serving process and executing judgments, but it also authorized the judiciary to make “such alterations and additions as the said courts respectively shall in their discretion deem expedient. . . .”¹⁴ Congress’s enumerated legislative power under the Necessary and Proper Clause surely allows it to make laws “for carrying into Execution” the judicial power by specifying forms of process and the manner of execution of judgments. In a lengthy dictum, Chief Justice John Marshall, for a unanimous Court, seemed to place a limit on Congress’s powers to transfer legislative authority to the judiciary: “It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative.”¹⁵ But Marshall also noted that some actions are not, in their nature, exclusively legislative. The fact that Congress could properly legislate in the area of judicial procedure did not mean that the courts could not also exercise power over those matters and that Congress could not enlist the courts to help establish the rules of procedure. This point is crucial to an understanding of the Legislative Vesting Clause, the Constitution’s essential structure, and the lines drawn by the document among the various governmental powers.

The Constitution divides and allocates governmental powers, not governmental functions or actions. There may be some actions—such as passage of a bill, direction of troops in battle, or entry of a criminal judgment—that are uniquely the exercise of legislative, executive, or judicial powers, respectively, but other actions can easily fall within the scope of more than one of the three vested constitutional powers. For example, Congress has the exclusive power of establishing in law the right of persons to present claims against the government, but it can vest the action of adjudicating those claims in each of the three branches: in the courts as part of their judicial power of deciding cases, in the executive as part of its power to execute the laws faithfully, or in Congress itself as part of its own legislative power by passing private bills for the relief of individuals. Thus, the legislative, executive, and judicial powers are partially overlapping rather than mutually exclusive categories with regard to the actions that fall within these three categories.

Thus, Wayman reasoned, if the courts could promulgate rules of procedure under their “judicial Power,” it would not constitute a delegation of legislative power for Congress to channel that power through a statute even if the statute provided no clear guidelines. Because this discussion was dictum, it was not necessary for the Court to determine precisely which procedural rules had to be fixed by Congress and which could be set by courts under a vague authorization from Congress. As Marshall noted, “there is some difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its Courts.”¹⁶

Similar difficulty arises when Congress seeks to “avail itself” of the aid of the executive in implementing statutes, perhaps by having agencies promulgate regulations or conduct adjudications to determine the meaning of a statute. The First Congress enacted a law that provided for the payment of military pensions “under such regulations as the President of the United States may direct.”¹⁷ Another such law required that licensed Indian traders be governed “by such rules and regulations as the President shall prescribe.”¹⁸ “The difference between the departments,” explained Marshall, “undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry. . . .”¹⁹ As for how to resolve this “delicate and difficult inquiry” when necessary, “[t]he line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.”²⁰

Legislative Delegation Before and During the New Deal

Courts have spent two centuries trying to improve on Chief Justice Marshall’s analysis. The courts since 1825 have not expressly tried to distinguish between “important” matters and matters of “less interest” as the touchstone for determining the kind and quality of discretion that Congress can permissibly vest in executive or judicial actors. It is unclear what replaced that line for the first century after 1825.

Before the New Deal in the 1930s, there were many challenges to statutes as impermissible delegations of legislative authority. In all of those cases, the Court treated the challenges as constitutionally serious, although it was never clear about precisely how one should try to resolve such challenges. Only two of those cases found a statute unconstitutional, and neither involved an executive agency.²¹ More common was the outcome in J. W. Hampton, Jr. & Co. v. United States (1928), in which the Court upheld a statute authorizing the President to adjust tariff rates to “equalize the . . . costs of production” in the United States and the exporting country.²² In oft-quoted language, the Court set out a standard that has governed for the ensuing century: A statute vesting very broad discretion in executive or judicial actors is constitutional if “Congress shall lay down by legislative act an intelligible principle to which the person or body . . . is directed to conform.”²³

In 1935, during the early years of the New Deal, the Court decided two cases that found an absence of “intelligible principle[s]” in two provisions of the National Industrial Recovery Act: Panama Refining Co. v. Ryan (1935) and A.L.A. Schechter Poultry Corp. v. United States (1935). For the first and (thus far) only times in the nation’s history, the Court found statutes to be unconstitutional delegations of legislative authority to federal agencies.²⁴ The sheer scope of power over national affairs granted by the statute was unprecedented, and many scholars have speculated that this feature of the statute played a role in the decisions.

Legislative Delegation After the New Deal

In the nine decades since Panama Refining and Schechter Poultry, the Court has not declared a statute unconstitutional on delegation grounds. The Court has found valid “intelligible principle[s]” in a wide range of statutes: for example, laws that require agencies to determine “excessive profits”; to grant licenses as “public interest, convenience, or necessity” require; to set “fair” and “equitable” prices; and to prohibit corporate structures that “unfairly or inequitably” distribute voting power among security holders. In Mistretta v. United States (1989), the Court all but declared the delegation doctrine non-justiciable—that is, a dispute incapable of being resolved by the courts. Mistretta upheld an open-ended grant of authority to the U.S. Sentencing Commission to set ranges for criminal sentences. The Court explained that “our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”²⁵

In Whitman v. American Trucking Association (2001), the Court unanimously upheld, with relatively little discussion, a statute instructing the Environmental Protection Agency to set ambient air quality standards “which in the judgment of the Administrator . . . are requisite to protect the public health” with “an adequate margin of safety.”²⁶ From Mistretta through Whitman, the Supreme Court rejected all fifty-three delegations challenges before it.

The consequences of the Court’s reluctance to police the boundaries of the legislative, executive, and judicial powers cannot be overstated. Since the New Deal, Congress has routinely enacted statutes that place the vast bulk of responsibility for promulgating binding norms in administrative agencies. Derivatively, courts review the decisions of these administrative agencies. With these sweeping delegations of authority, by any relevant measure, agencies are far more important instruments of governance than Congress is.

The Court has signaled a potential change in its approach. In Gundy v. United States (2019), upholding a statute that let the Attorney General determine the retroactive effects of a criminal law, three Justices vigorously dissented, calling for revival of a serious delegation principle.²⁷ Justice Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, rejected the toothless “intelligible principle” inquiry that has governed for the past century. Justice Gorsuch located the delegation principle in the structure of enumerated institutional powers on the theory that “[i]f Congress could pass off its legislative power to the executive branch, the ‘[v]esting [c]lauses, and indeed the entire structure of the Constitution,’ would ‘make no sense.’”²⁸ Justice Samuel Alito expressed a willingness to reconsider the Court’s jurisprudence in a future case. “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years,” he wrote, “I would support that effort.”²⁹ Shortly thereafter, Justice Brett Kavanaugh, who did not participate in the Gundy case, wrote in a concurrence to a denial of certiorari that “Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”³⁰

Open Questions

• If the Court chooses to reconsider the governing “intelligible principle” doctrine, “What’s the test”³¹ to determine whether a statute violates the delegation doctrine?
• Does the Constitution impose a categorical ban on all legislative grants of executive or judicial discretion? Or does it provide a categorical approval of all legislative grants of executive or judicial discretion? Or does it support a calibrated doctrine that applies differently in different contexts—and possibly across different clauses?³²
• Does history provide good answers to any of the foregoing questions? Which history is most relevant? For example, does the history of early Congresses count for more, for less, or the same as the history of the common law of principal and agent?
• Do delegations to private parties raise more serious concerns than delegations to other government actors raise?

1. 1 Farrand’s 20–21; Aaron T. Knapp, The New Jersey Plan and the Structure of the American Union, 15 Geo. J.L. & Pub. Pol’y 615, 620 (2017). ↩︎
2. Penn. Const. of 1790, art, I, § 1; Ga. Const. of 1789, art. I, § 1. ↩︎
3. 4 The Works of John Adams 579 (Charles Francis Adams ed., 1851). ↩︎
4. John Mikhail, The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers, 101 Va. L. Rev. 1063, 1080–81 (2015); Richard Primus, Herein of “Herein Granted”: Why Article I’s Vesting Clause Does Not Support the Doctrine of Enumerated Powers, 35 Const. Comment. 301 (2020). ↩︎
5. 2 Farrand’s 21. ↩︎
6. 17 U.S. (4 Wheat.) 316, 405 (1819). ↩︎
7. 514 U.S. 549, 552 (1995). ↩︎
8. Kevin Arlyck, Delegation, Administration, and Improvisation, 97 Notre Dame L. Rev. 243 (2021); Julian Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277 (2021); Nicholas Parillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021). ↩︎
9. Aaron Gordon, Nondelegation Misinformation: A Reply to the Skeptics, 75 Baylor L. Rev. 152 (2023); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490 (2021). ↩︎
10. John Locke, Second Treatise on Civil Government § 141. ↩︎
11. Philip Hamburger, Is Administrative Law Unlawful? 377 (2015); Gary Lawson, A Private-Law Framework for Subdelegation, in The Administrative State Before the Supreme Court 123 (Peter J. Wallison & John Yoo eds., 2022). ↩︎
12. Gundy v. United States, 588 U.S. 128, 153 (2019) (Gorsuch, J., dissenting). ↩︎
13. 23 U.S. (10 Wheat.) 1 (1825). ↩︎
14. Act of May 8, 1792, ch. 36, § 2, 2 Stat. 275, 276. ↩︎
15. Wayman, 23 U.S. (10 Wheat.) at 42. ↩︎
16. Id. at 46. ↩︎
17. Act of Sept. 29, 1789, ch. 24, 1 Stat. 95. ↩︎
18. 18. Act of July 22, 1790, ch. 33, § 1, 1 Stat. 137. ↩︎
19. 19. Wayman, 23 U.S. (10 Wheat.) at 46. ↩︎
20. Id. at 43 (emphasis added). ↩︎
21. United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). ↩︎
22. 276 U.S. 394 (1928). ↩︎
23. Id. at 409. ↩︎
24. 293 U.S. 388 (1935); 295 U.S. 495 (1935). ↩︎
25. 488 U.S. 361, 372 (1989). ↩︎
26. 531 U.S. 457, 472 (2001). ↩︎
27. 588 U.S. 128, 149 (2019) (Gorsuch, J., dissenting). ↩︎
28. Id. at 155 (Gorsuch, J., dissenting) (quoting Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 340 (2002)). ↩︎
29. 588 U.S. at 149 (Alito, J., concurring in the judgment). ↩︎
30. Paul v. United States, 140 S.Ct. 342 (2019). ↩︎
31. Gundy, 588 U.S. at 157 (Gorsuch, J., dissenting). ↩︎
32. Michael B. Rappaport, A Two Tiered and Categorical Approach to the Nondelegation Doctrine, in The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine 195 (Peter J. Wallison & John C. Yoo eds., 2022); Chad Squitieri, Towards Nondelegation Doctrines, 86 Mo. L. Rev. 1239 (2021). ↩︎