objection can be made ***. The legislature, although it cannot delegate its power to make a law, can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend * **. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and, must therefore, be a subject of inquiry and determination outside the halls of legislation.' On the basis of such principles, the Tariff Act of 1890 was not illegal because it authorized the President to suspend the free importation of enumerated commodities for such time as he may deem just whenever he found that other countries imposed on agricultural or other products of the United States duties or exactions which he may deem to be reciprocally unequal or unjust. Such a statute did not invest the President with the power of legislation, for Congress itself prescribed the duties to be collected while the Presidential suspension lasted and left nothing involving the expediency or just operation of such law to the determination of the President. The President "had no discretion except as to the duration of the suspension which he ordered * * *. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact, and in issuing his proclamation, in obedience to legislative will, he exercised the function of making laws * * * What he was required to do was simply in execution of the act of Congress."

U.S. v. Eaton ((1892) 144 U.S. 677): A section in a statute prescribing criminal penalties for any violation of said law will not support a criminal prosecution for willful disobedience of administrative regulations issued pursuant to express authorization contained in said statute. It is necessary for sufficent statutory authority to exist for declaring an act or omission a criminal offense. In the instant case, Congress, in section 18 of a law pertaining to the taxation of oleomargarine, imposed a penalty for neglecting to do any of the things required by said law. However, a wholesale dealer in oleomargine who neglected to keep books in conformity with a regulation issued by the Commissioner of Internal Revenue pursuant to section 20 of that law was held not subject to criminal prosecution for the reason that Congress had failed to provide expressly that violations subject to prosecution under section 18 shall embrace disobedience not only to provisions of that law but also regulations issued pusuant to section 20.

In re Kollock ((1897) 165 U.S. 526): An act which requires manufacturers and retail dealers in oleomargine to pack oleo sold by them in suitable wooden or paper packages, which shall be marked, branded, and stamped as the Commissioner of Internal Revenue, with approval of the Secretary of the Treasury, shall prescribe, which provides that all sales shall be in original stamped packages, and which imposes a fine and imprisonment on those who trade in oleo not so packed or branded or stamped does not unconstitutionally delegate the power to define what shall be a criminal offense or to determine what acts shall be criminal. The criminal offense is fully defined in the law, and the designation by the Commissioner of the marks and brands to be affixed was a regulation specifically authorized in effectuation of the legislation which created the offense. The vesting of such discretion in the Commissioner also entailed no invalid delegation of legislative power.

Buttfield v. Stranahan ((1904) 192 U.S. 470): When a statute acts on a subject as far as practicable and only leaves to executive officials the duty of bringing about the result pointed out, and provided for, it is not unconstitutional as vesting executive officers with legislative powers.

Hence the act of 1897 is not invalid because it authorized the Secretary of the Treasury, on recommendation of a designated administrative board, to fix and establish uniform standards of purity, quality, and fitness for consumption of all kinds of teas imported into the United States and prevented importation of tea described as inferior to such standards. The statute evinced a purpose of Congress to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was fixing the primary standard, and devolved on the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. In any real sense, therefore, no power of legislation was vested in administrative officials.

Union Bridge Co. v. U.S. ((1907) 204 U.S. 364): The Rivers and Harbors Act of 1899 effected no unconstitutional delegation of legislative or judicial power to the head of an executive department when it authorized the Secretary of War, whenever he shall have good reason to believe that any bridge over navigable

waters is or would be an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width, or span, or otherwise, or that there is difficulty in passing the draw of such bridge by watercraft, to give the parties reasonable opportunity to be heard, and then to give notice to the owners of the bridge to alter same as to render navigation through or under it free and unobstructed. In giving such notice the President was directed to specify the changes or alterations recommended by the Chief of Engineers as requisite, and to prescribe a reasonable time in which to make them.

Congress, in the execution of a policy, merely committed to the Secretary of War the duty of ascertaining all the facts essential in any inquiry whether particular bridges were unreasonable obstructions to navigation. Congress itself could have made this determination as to any bridge, but investigations by Congress as to each particular bridge alleged to constitute an obstruction would be impracticable in view of the varied interests which require national legislation. Congress, however, stopped with the declaration of a rule and imposed upon the Secretary the duty of ascertaining what particular cases came within that rule, as well as the duty of enforcing the rule in such cases. In performing that duty the Secretary only executed the will of Congress.

"It is not too much to say that a denial to Congress of the right to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends would be to stop the wheels of government and bring about confusion, if not paralysis, in the conduct of public business."

U.S. v. Gremaud ((1911) 220 U.S. 506): Congress cannot leave to the Executive the determination, in his discretion, of a reasonable penalty for the violation of statutes or administrative regulations, but it can itself make the violation of administrative regulations issued under its authority a crime. When the penalty for violation of regulations to be made by an executive officer is prescribed by statute, the violation is not made a crime by such officer but by Congress, and Congress and not such officer fixes the penalty. Nor is the offense against such officer but against the United States. Consequently, criminal prosecution validly may be instituted for violation of grazing regulations issued by the Secretary of Agriculture pursuant to a statute authorizing him to make regulations governing the use and occupancy of public forest preserves for the purpose of protecting the latter against destruction by fire, and further providing that violation of his regulations shall be a penal offense.

Interstate Commerce Comm. v. Goodrich Transit Co. ((1912) 224 U.S. 214): The provisions of an act of 1906, authorizing the Interstate Commerce Commission to require accounts to be kept in a specified manner by interstate carriers, are not an unconstitutional delegation of legislative power.

Mahler v. Eby ((1924) 264 U.S. 32): Inasmuch as the discretion delegated is sufficiently defined by the policy of Congress, as expressed therein, and the common understanding as to what "undesirable residents" are, no invalid delegation of legislative power was effected by enactment of the Alien Act of 1912 which established classes of persons who, in the judgment of Congress, are eligible for deportation and directed the Secretary of Labor to deport members of these classes whom he finds to be undesirable residents. Congress cannot designate all the persons to be excluded. It must accomplish its purpose by classification and by conferring power of selection within classes upon an executive agency.

Avent v. U.S. ((1924) 266 U.S. 127): No unconstitutional delegation of legislative power resulted from adoption of the Transportation Act of 1920 whereunder the Interstate Commerce Commission was authorized, whenever it is of the opinion that shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in any part of the country, to suspend its rules as to car service and make reasonable rules such as will best promote service in the interest of the public and to give directions for preference or priority in transportation or movement of traffic.

U.S. v. Chemical Foundation ((1926) 272 U.S. 1): It was constitutionally permissible for Congress to provide, as it did in the Trading with the Enemy Act, that the Alien Propery Custodian shall be vested with the powers of a common law trustee all alien property taken over by the Government and to empower him, under the President, unconditionally to make disposition of it by sale or otherwise and to exercise any appurtenant rights and powers in the same maner as if he were the absolute owner. It was not necessary for Congress to ascertain the facts or to deal with each case. The determination by the President as Commander in Chief of the terms of the sales in the light of

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facts and conditions arising out of the war was not the making of law, but rather, the application of the general rule laid down in the act.

Hampton Jr. & Co. v. U.S. ((1928) 276 U.S. 394): It was not unconstitutional for Congress to empower the President, by the terms of title 3 of the Tariff Act of 1922, to increase or decrease duties imposed by that act so as to equalize the differences which, upon investigation, he finds between the cost of producing at home and in competing foreign countries the kinds of articles to which such duties apply. The Tariff Act laid down certain criteria to be considered in ascertaining the differences, fixed certain limits of change, and made an investigation by the Tariff Commission a necessary preliminary to any Presidential proclamation changing the duties.

N.Y. Central Securities Co. v. U.S. ((1932) 287 U.S. 12): An authorization to the Interstate Commerce Commission contained in the Transportation Act is not invalid for want of an intelligible standard or specific expression therein of legislative policy by reason of the fact that the Commission is empowered, after notice and hearing and findings of fact and law based on the record made at said hearing, to sanction the acquisition by one carrier of control of another whenever, in its opinion, such acquisition will be in the "public interest." The latter, as a criterion of the Commission's authority, is not the public welfare in general, but the public interest in the adequate transportation sought to be secured by the act. As thus used it is not a concept without ascertainable criteria but has direct relation to such transportation, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation of facilities.

U.S. v. Shreveport Grain & El. Co. ((1932) 287 U.S. 77): No unconstitutional delegation of legislative power resulted from the direction to enforcement officers contained in the Food and Drugs Act to the effect that reasonable variations shall be permitted from the requirement that the quantity of food in packages shall be marked outside the package in terms of weight, measure, or count, and that tolerances and also exemptions as to small packages shall be established by administrative regulations.

Federal Radio Comm'n v. Nelson Bros. Co. ((1933) 289 U.S. 266): A provision in the Radio Act of 1927 requiring the Federal Radio Commission to act "as public convenience, interest, or necessity requires" is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power. The requirement is to be interpreted by its context and subject matter, and, where an equitable adjustment in the grant of broadcast licenses between States is in view, by the relative advantages in service which will be enjoyed by the public through the distribution of facilities.

Valid for the same reason is the provision contained in the Communications Act of 1934 under which the Federal Communications Commission was to be guided by considerations of "public convenience, and necessity" in issuing or withholding permits and licenses. Federal Com'n v. Broadcasting Co. (1940) 309 U.S. 134, 138; Nat. Broadcasting Co. v. U.S. (1943) 319 U.S. 190, 225-226. Panama Refining Co. v. Ryan ((1935) 293 U.S. 388): Section 9(c) of the National Industrial Recovery Act, authorized the President to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn by any State law or valid regulation prescribed thereunder, and fixed a criminal penalty for violation of any Presidential order issued under this subsection.

Section 9 (c) was held to transcend the constitutional limits to the delegation of the lawmaking function by Congress for the reasons that Congress had not declared therein any policy, or established any standard, or laid down any rule. There was contained in that subsection no definition of the circumstances and conditions in which the transportation of petroleum products was to be allowed or prohibited by the President, nor any requirement of findings by the President as a condition of his action. In short, Congress attempted in § 9 (c) to confer on the President an unlimited authority to determine policy and to lay down a prohibition, or not, as he saw fit. Moreover, the other provisions of § 9 were found to be unrelated to § 9(c) and therefore could not be relied upon to furnish the declaration of policy or standard of action not expressed in § 9(c) or to afford any ground for implying any limitation on the broad grant of authority in § 9(c). Nor could such circumstances be disregarded and the question whether such delegation of legislative power is constitutionally permitted be answered by

the argument that it should be assumed that the President will act for what he believes to be the public good.

Schechter Corp. v. U.S. ((1935) 295 U.S. 490): Section 3 of the National Industrial Recovery Act authorized the President to approve codes of fair competition for a trade or industry, upon application by one or more trade, or industrial associations or groups, whenever he found that (1) such associations or groups "impose no inequitable restrictions on admission to membership therein and are truly representative," (2) that such codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them and (3) will tend to effectuate the policy of title I of the act. Codes permitting monopolies or monopolistic practices were forbidden. As a condition of his approval, the President was empowered to "impose conditions, including requirements for the making of reports and the keeping of accounts, for the protection of consumers, competitors, employees, etc., and, in furtherance of the public interest, and might provide such exceptions to, and exemptions from, the provisions of a code as in his discretion he deemed necessary to effectuate the policy declared" in the act. When a code was not approved, the President also might prescribe one, either on his own motion or on complaint. Statutory penalties were imposed for violations of the terms of approved and prescribed codes.

Section 3 was condemned as containing an unprecedented, unconstitutional delegation of legislative power to the President in that it supplied no standards for any trade, industry, or activity, and prescribed no rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead it authorized the making of codes to prescribe them. For that legislative undertaking it established no standards, aside from a statement of the general aim of rehabilitation and expansion of the national economy. By virtue of the broad scope of that statement and the nature of the few restrictions that were imposed, the discretion vested in the President as to approving or prescribing codes and thus enacting laws for the government of trade and industry was left unfettered.

U.S. v. Curtiss-Wright Export Corp. ((1936) 299 U.S. 304): In order to avoid embarrassment and to foster attainment of national aims in the conduct of foreign relations, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, unbroken legislative precedent since the inception of the National Government supports this conclusion that Congress validly may authorize action by the President in respect of subjects affecting foreign relations which either leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.

Accordingly, no unconstitutional delegation of legislative power to the President was effected by the joint resolution of 1934 which provided that if the Executive found that prohibition of the sale of munitions of war to the countries engaged in conflict in the Chaco might contribute to restoration of peace, and if, after consultation and with the cooperation of other American Republics, he made a proclamation to that effect, it should be unlawful to sell, except under such limitations as the President prescribed, munitions to the countries then engaged in conflict, or to any one acting in their behalf, until otherwise ordered by the President or Congress. Specifically rejected as the basis for invalidation were contentions that the going into effect and continued operation of the Joint Resolution was conditioned (a) upon the President's judgment as to its beneficial effect upon the reestablishment of peace in the Chaco, (b) upon the making of a proclamation which was left to his unfettered discretion, (c) upon the making of a proclamation putting an end to the operation of the resolution which also was left to his unfettered discretion, and (d) further, that the extent of its operation in particular cases was subject to limitation by the President, controlled by no standard.

Currin v. Wallace ((1939) 306 U.S. 1): No invalid delegation of legislative power to the Secretary of Agriculture was discernible in the provisions of the Tobacco Inspection Act of 1935. By its terms the Secretary was authorized to establish standards of tobacco, and to designate the auction markets where tobacco bought and sold moves in interstate or foreign commerce. At a market

so designated no tobacco may be offered for sale at auction until it has been inspected and certified according to such standards by an agent of the Secretary. The latter cannot designate a market unless two-thirds of the growers favor it at a referendum. Also, if inspectors are not available or if the Secretary is unable to provide for inspection and certification, he shall first designate those markets where the largest number of growers will be served with the facilities available. Moreover, if competent investigators are unavailable or if the quantity of tobacco is not enough to justify the cost of the service, the Secretary may suspend certification and inspection.

The provision that the Secretary shall make the necessary investigations to the end of effectuating congressional policy as to establishment of standards for tobacco and shall fix the standards according to kind and quality is plainly appropriate and conforms to established legislative practice. The designation of auction markets calls only for the ascertainment of fact; for the intent of Congress is clear that the markets thus ascertained shall be designated subject to prescribed conditions. The provision for suspension of a designated market also sets forth definite as well as reasonable criteria to guide the Secretary in taking such action. Accordingly, no unfettered discretion was vested in the Secretary of Agriculture.

Mulford v. Smith ((1939) 307 U.S. 38): Title 3 of the Agricultural Adjustment Act of 1938, applicable to the marketing of Flue-cured tobacco, contains no unconstitutional delegation of legislative power to the Secretary of Agriculture. It provides that when, in any year on November 15, the Secretary finds that the total supply of tobacco, as of July 1, exceeded the reserve supply level as defined in this law, he shall proclaim a national marketing quota, subject to approval thereof by two-thirds of the producers at a referendum. The quota for any year is first apportioned among the States, largely on the basis of past production, and each State allotment is to be apportioned among the farms largely on the basis of past production and marketing.

The act was construed as containing definite standards for the government of the Secretary in fixing the quota and his allotments among States and farms. He is directed to adjust the allotments so as to allow for specified factors which have abnormally affected the production of the State or the farm in question during the last 10 years. Congress therein also indicated in detail the considerations which are to be held in view in making these adjustments, and, as a protection against arbitrary action, has afforded both administrative and judicial review to correct errors.

U.S. v. Rock Royal Co-op ((1939) 307 U.S. 533): In dealing with legislation involving questions of economic adjustment, each enactment must be considered to determine whether it states the purpose which Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand these limits. Within these tests Congress needs to specify only so far as is reasonably practicable.

The Agricultural Marketing Agreement Act of 1937 was held to satisfy these tests. Its purpose, as set forth in its provisions, is to establish and maintain such orderly marketing conditions for agricultural commodities in interstate commerce as will establish prices to farmers at a level that will afford them "parity." To this end the Secretary of Agriculture is directed to issue orders whenever he has reason to believe such issuance will tend to effectuate the declared policy of the act. The tests to determine the purpose and the powers dependent on that conclusion are defined in the act. The terms of the orders issued by the Secretary are limited to the specific provisions minutely set out in the law. The Secretary is not permitted freedom of choice as to the commodities which he may attempt to aid by an order. The act limits him to milk, certain fresh fruits, fresh vegetables, soybeans, and naval stores. Moreover, the Secretary's orders cannot be issued until after hearings and the findings made as required by law. Even though procedural safeguards will not validate an unconstitutional delegation, they do furnish protection against arbitrary use of properly delegated authority. Finally, although the standards for determining prices are less definite than the tests for parity, nevertheless, they do give ample indications of the various factors to be considered by the Secretary. He must first determine the prices that will give a commodity a purchasing power equivalent to those of the base period, after considering the price and supply of feed and other pertinent economic conditions affecting the milk market in the area. If the Secretary finds the price thus determined to be unreasonable, it is then to be fixed at a level which will reflect such factors, provide adequate quantities of the commodity, and be in the public interest.