The pioneer case which recognized the right of Congress to lodge in another department the power to "fill up the details" of a statute arose out of the authority given to federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. Chief Justice Marshall overruled the objection that this constituted an invalid delegation of legislative power, saying: "It will not be contended, that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. * * * The 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."[24]
STANDARDS FOR ADMINISTRATIVE ACTION
Before another agency can "fill up the details," Congress must enact something to be thus supplemented. In the current idiom, the lawmakers must first adopt a policy or set up an "intelligible standard" to which administrative action must conform.[25] But the Court has taken a generous view of what constitutes a policy or standard. Although it has said that "procedural safeguards cannot validate an unconstitutional delegation,"[26] the nature of the proceedings appears to be one of the elements weighed in determining whether a specific delegation is constitutional.[27] In cases where the delegated power is exercised by orders directed to particular persons after notice and hearing, with findings of fact and of law based upon the record made in the hearing, the Court has ruled that such general terms as "public interest,"[28] "public convenience, interest, or necessity,"[29] or "excessive profits,"[30] were sufficient to satisfy constitutional requirements. But in two cases arising under the National Industrial Recovery Act, a policy declaration of comparable generality was held insufficient for the promulgation of rules applicable to all persons engaged in a designated activity, without the procedural safeguards which surround the issuance of individual orders.[31] By subsequent decisions, somewhat more elaborate, but still very broad, standards have been deemed adequate for various price fixing measures.[32] In a recent case,[33] the Court sustained a statute which, without any explicit standards whatever, authorized the Federal Home Loan Bank Board to make rules and regulations for the supervision of Federal Savings and Loan Associations. That decision was influenced by the fact that the corporation was chartered by federal law as well as by the peculiar problems involved in the supervision of financial institutions. The Court was at pains to make clear that this decision would not necessarily govern the disposition of dissimilar cases.[34]
After Wayman v. Southard, nearly three quarters of a century elapsed before the Court had occasion to approve the delegation to an executive officer of power to issue regulations for the administration of a statute. In 1897 it sustained the authority granted to the Commissioner of Internal Revenue to designate the "marks, brands and stamps" to be affixed to packages of oleomargarine.[35] Soon thereafter it upheld an act which directed the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.[36] It has approved the delegation to executive or administrative officials of authority to make rules governing the use of forest reservations;[37] permitting reasonable variations and tolerances in the marking of food packages to disclose their contents;[38] designating tobacco markets at which grading of tobacco would be compulsory;[39] establishing priorities for the transportation of freight during a period of emergency;[40] prescribing price schedules for the distribution of milk;[41] or for all commodities[42] and for rental housing[43] in time of war; regulating wages and prices in the production and distribution of coal;[44] imposing a curfew to protect military resources in designated areas from espionage and sabotage;[45] providing for the appointment of receivers or conservators for Federal Savings and Loan Associations;[46] allotting marketing quotas for tobacco;[47] and prescribing methods of accounting for carriers in interstate commerce.[48]
ORDERS DIRECTED TO PARTICULAR PERSONS
The now familiar pattern of regulation of important segments of the economy by boards or commissions which combine in varying proportions the functions of all three departments of government was first established by the States in the field of railroad rate regulation. Discovering that direct action was impracticable, the State legislatures created commissions to deal with the problem. One of the pioneers in this development was Minnesota, whose Supreme Court justified the practice in an opinion which, with the implied[49] and later the explicit,[50] endorsement of the Supreme Court, practically settled the law on this point: "If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic."[51] Contemporaneously Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making power to the Commission, it has repeatedly affirmed rate orders issued by that agency.[52] Likewise it has sustained the power of the Secretary of War to order the removal or alteration of bridges which unreasonably obstructed navigation over navigable waters;[53] the power of the Federal Reserve Board to authorize national banks to act as fiduciaries;[54] the authority of the Secretary of Labor to deport aliens of certain enumerated classes, if after hearing he found such aliens to be "undesirable residents";[55] the responsibility of the Interstate Commerce Commission to approve railroad consolidations found to be in the "public interest";[56] and the powers of the Federal Radio Commission[57] and the Federal Communications Commission[58] to license broadcasting stations as "public convenience, interest and necessity" may require. The terms, however, in which a statute delegates authority to an administrative agent are subject to judicial review; and in a recent case the Court disallowed an order of the Secretary of Agriculture proporting resting on § 8 of the Agricultural Marketing Agreement Act of 1937[59] as ultra vires.[60]
Although in a few early cases the Supreme Court enforced statutes which gave legal effect to local customs of miners with respect to mining claims on public lands,[61] and to standards adopted by railroads for equipment on railroad cars,[62] it held, in Schechter Poultry Corp. v. United States,[63] and Carter v. Carter Coal Company[64] that private trade groups could not be empowered to issue binding rules concerning methods of competition or wages and hours of labor. On the other hand, statutes providing that restrictions upon the production or marketing of agricultural commodities shall become operative only upon a favorable vote by a prescribed majority of the persons affected have been upheld.[65] The position of the Court is that such a requirement does not involve any delegation of legislative authority, since Congress has merely placed a restriction upon its own regulation by withholding its operation in a given case unless it is approved upon a referendum.[66]