POWER TO SUPPLEMENT STATUTORY PROVISIONS

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