32.2 Limit Agency Authority


Congress’s delegation of legislative authority to federal agencies shall be strictly construed.

Proposed Language:

The delegation of legislative power by Congress to the President or any department or any executive agency shall be accompanied by standards and shall be strictly construed. If there is any doubt concerning whether a government official has delegated power, the presumption shall be that he does not. Courts shall not defer to the judgment of legislative or executive officials with respect to their power nor accord to them any presumption of authority but shall require strict proof. Whether any regulation is authorized by law is at any trial a question of fact for the trier of fact, though the court can reverse a finding that authority exists if it believes as a matter of law there is no authority. No agency to which legislative power is delegated shall have any privilege to withhold information from Congress.


Under the Constitution, each of the branches of government is delegated power. In order to preserve the separation of powers, a concept essential to our freedoms, the Supreme Court has established that one branch cannot delegate its powers to another branch. In Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), the Supreme Court said, “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” A general exception to the foregoing rule is that Congress can delegate regulatory authority to the President or executive agencies having legislative implications as long as standards are applied. However, over the years, the standards required to support this delegation have degenerated into standards such as the public interest. The only reason Congress would do this is because it is lazy and would prefer for the regulators to determine standards that should more appropriately be determined by Congress. The growth and breadth of federal agencies is a concern to everyone. A good way to restrain them is to require Congress to establish better standards and require courts to restrict agency powers in doubtful situations by strictly construing their authority. It is also appropriate that agencies that are, in effect, executing legislative power, not have a privilege to withhold any information from Congress.