January 18, 2022

Delegated legislation in USA: An Overview

administrative law

Introduction to Delegated legislation in USA

Delegated (or Subordinate or Subsidiary) Legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority. Delegated legislation is also referred to as secondary legislation or subordinate legislation. It is law made by an executive authority under powers given to them by primary legislation to implement and administer the requirements of that primary legislation. Delegated legislation is the name given to legislation.

Where Acts are made by Parliament, a Principal Act may make provision for Subsidiary Legislation to be made and will specify who has the power to do so under that Act. Delegated Legislation can only exist about an enabling or parent Act. Delegated Legislation contains the many administrative details necessary to ensure that the provisions of the Act will operate successfully. It may be administered by Government Departments, Local Councils or Courts.

Regulations and Statutory Rules are the most common forms of Delegated Legislation in USA. They are made by the Executive or a Minister and apply to the general population. By-laws, and sometimes Ordinances, are made by a Local Government Authority and apply to the people who live in that area. Rules commonly describe the procedure to be followed in courts.

Delegated Legislation can apply to many areas of the law:

  • Procedure (court rules)
  • Mining and energy
  • Native title
  • Family law
  • Criminal law
  • Food standards
  • Civil aviation
  • Corporations
  • Superannuation
  • Taxation
  • Migration

Background for Delegated Legislation in USA

Delegation (or non-delegation) of legislative power has been a topic of discussion in the United States for centuries. In 1690, in his Second Treatise of Civil Government, John Locke wrote:

The 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…And when the people have said, We will submit to rules, and be governed by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.

The power of the Legislative being derived from the People by a positive voluntary Grant and Institution can be no other, then what the positive Grant conveyed, which is only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.

Under constitutional separation-of-powers provisions, laws are enacted by the legislature, administered by the executive and interpreted by the judiciary. Can legislatures be expected to ratify statutes that address every minute detail of policy? The most probable answer is “no.” Therefore, it may be realistic to permit the delegation of some legislative powers. Questions typically arise, however, over which powers can be delegated, to whom, and to what extent.

The U.S. Supreme Court has allowed some delegation of legislative power. In Wayman v. Southard (1825), Chief Justice John Marshall distinguished between “important subjects” and “mere details.” He wrote that “a general provision may be made, and the power given to those who are to act under such general provision, to fill up the details.”

In Mistretta v. the United States (1989), the U.S. Supreme Court applied the “intelligible principle” test. The Court deemed it “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

The ability to delegate legislative authority varies among the states. Researchers often divide the states into three general groups:

1. The “strict standards and safeguards” category. States in this category permit “delegation of legislative power only if the statute delegating the power provides definite standards or procedures” to which the recipient must adhere.

2. The “loose standards and safeguards” category. States in this category view delegation as acceptable “if the delegating statute includes a general legislative statement of policy or a general rule to guide the recipient in exercising the delegated power.”

3. The “procedural safeguards” category. States in this group “find delegations of legislative power to be acceptable so long as recipients of the power have adequate procedural safeguards in place.

Delegated legislation in the USA :

The U.S. Congress functions under a written Constitution and the courts have the power to interpret the Constitution and declare a Congressional statute unconstitutional if it does not conform to their view of the Constitution. U.S. laws are written by the legislative branch of the U.S. Govt.

In the U.S.A., the question of delegation of legislative powers thus involves a conflict of values. On the one hand, the doctrine of separation insists that the legislative function be kept aloof and distinct from the executive function.

On the other hand, as already noted, the exigencies of modern Government make it practically impossible to concentrate all legislative power in the hands of the Congress which cannot possibly dispose of all legislative work by itself in the sense of turning out comprehensive legislation complete in all details on every subject it undertakes to legislate upon. If Congress were not willing to delegate law-making power to some agency then it may be impossible for it to enact the kind and quantity of legislation which the country may need.

The simple version is as follows: A representative writes a bill that is then voted on the floor of the House and the floor of the Senate. If they pass both houses of the legislative branch without any modifications it goes to the president and he decides to sign it. He can veto the bill and the legislative branch can override the veto with 67 votes in the Senate (2/3 of the vote) American laws are really difficult to create. The Speaker of The House has the authority to decide which bills to send to the appropriate committee.

If it is a spending bill, it would go to the Appropriations Committee. The bill may die in committee or successfully pass committee but never brought to the floor of The House or floor of the Senate. The power to bring bills to the floor area up to The Speaker of The House. There are some slight differences like time-limits for speaking and filibusters but there are rules, mainly. A bill can be voted for in The House but fail in the Senate for a few different reasons. One reason is simple: not enough votes. The other is that they can’t agree on the piece of legislation and wish to add an amendment. The other is the filibuster. A filibuster is a rule of the Senate where Senators can endlessly talk and interrupt progress in the legislative process.

If a particular party has 2/3 of the votes they can interrupt the filibuster and continue with legislative activities. If the bill is slightly changed, it will be sent back to The House and voted for again. Some laws can successfully pass its appropriate committee, pass both houses, and have it signed by the president but they can face some constitutionality issues. If a law is believed to be violating a constitutional right, it will go through the Judicial process and eventually reach the Supreme Court.

Besides, the U.S. Supreme Court has also invoked the doctrine of delegates non-protest delegate against delegation by the Congress. The doctrine means that a delegate cannot further delegate its powers. The courts thus argue that the Congress, being a delegate of the people, cannot further delegate its law-making functions to any other agency.

Case laws for Delegated legislation in America

In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), also known as the Hot Oil case, was a case, in which the United States Supreme Court ruled that the Roosevelt Administration’s prohibition of interstate and foreign trade in petroleum goods produced in excess of state quotas, the “hot oil” orders adopted under the 1933 National Industrial Recovery Act, was unconstitutional. The ruling was the first of several that overturned key elements of the Administration’s New Deal legislative program. The relevant section 9(c) of the NIRA was found to be an unconstitutional delegation of legislative power, as it permitted presidential interdiction of trade without defining criteria for the application of the proposed restriction. The finding thus differed from later rulings that argued that federal government action affecting intrastate production breached the Commerce Clause of the Constitution.

In Panama v. Ryan, the Court found that Congress had violated the nondelegation doctrine by vesting the President with legislative powers without clear guidelines, giving the President enormous and unchecked powers. The omission of Congressional guidance on state petroleum production ceilings occasioned the adverse ruling because it allowed the executive to assume the role of the legislature. Justice Cardozo dissented, claiming that the guidelines had been sufficient.

Yakus v. U.S. is a case on the other side of the line. During World War II, the office of the Price Administrator was set up to control prices. The relevant Act declared that the prices fixed ought to effectuate the declared policy of the Act to stable commodity prices with a view to preventing wartime inflation and its disruptive causes and effects. In addition, the prices fixed had to be fair and equitable. In fixing prices, the Administrator had to give due consideration to the prices prevailing in a designated base-period.


Thus, it can be concluded that delegated legislation in USA is the exercise by a subordinate authority such as a Minister of the legislative power delegated to him by the Parliament. Parliament passes the Bill in general terms and delegates the authority of rule-making under the Act to the Minister concerned. Since this authority of rule-making is in pursuance of statutory authority and not an original power of the Executive in its own right delegated legislation is subservient to the statute under which it is made. If the rule is not consistent with the statute, it is null and void.

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Contributed by: Anisha Bhandari (Institute of Law, Nirma University)

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