Abstract: The “intelligible principle” in US law requires the Congress to lay down the intelligible principle for administrative agencies or other bodies when delegating legislative powers to them. However, as administrative power plays a more important role and the number of broad delegation rises, the intelligible principle faces difficulties in its application. The judicial practice in US shows that the Supreme Court, while generally accepting broad statutory delegations, has not entirely loosened its restraint on such delegation. On the one hand, the Court has strengthened its review of administrative rule-making process, so as to ensure that administrative agencies act within the scope of the delegated power; on the other hand, the Court has prohibited administrative agencies from making major decisions that are of great significance or excessively affect civil rights without explicit delegation. These measures reflect new approaches to restraining delegated legislative power that are different from the traditional approach, which concentrated mainly on clarity of the delegation itself. Considering the widespread use of broad delegation in practice, the aforementioned development of intelligible principle may provide some inspirations to China in ensuring the legality of administrative legislation.

Keywords: administrative power; delegation of legislative power; the “Intelligible Principle”; judicial review

Author: Dai Di, a post-doctoral researcher at CASS Law Institute.

Source: 4 (20201) Global Law Review.