The Odd Clauses by Jay Wexler

anytime in the near future. Instead, Congress created an agency called the United States Metric Board, “to devise and carry out a broad program of planning, coordination, and public education, consistent with other national policy and interests, with the aim of implementing the policy” of the statute.
    All Congress did in this law, then, is to delegate consideration of this whole metric thing to a federal agency made up of seventeen presidentially appointed individuals. If you now reread the weights and measures clause (“Congress shall have Power To . . . fix the Standard of Weights and Measures”) and then pause to emphasize a couple of times the first word of that clause, you might wonder whether this arrangement is constitutional. After all, the Constitution gives the power to fix the standards of weights and measures to
Congress,
not to some goofy seventeen-member board that Congress creates so that it can avoid having to decide what to do about fixing the standards of weights and measures. What gives?
    This question of whether Congress, whose members are elected and therefore accountable to the people, may delegate its constitutional powers to an agency run by unelected appointees is one of the central conundrums of American constitutional law. It is an undeniable fact that most of thelaws that govern almost every aspect of our economy come from federal agencies rather than from Congress. Think about environmental law for a second, for example. Sure, Congress has passed some incredibly important legislation to protect the environment—the Clean Water Act and Endangered Species Act come to mind—but who do you think really decides exactly what animals are endangered or how much nickel per gallon of wastewater a plant can discharge into a river? Federal agencies make these decisions, not Congress. And it’s the same for all the other agencies that regulate nearly everything we do, from aviation (the Federal Aviation Administration) to labor relations (the National Labor Relations Board) to securities trading (the Securities and Exchange Commission) to food policy (the Department of Agriculture) to a thousand other things. Whether it’s because members of Congress don’t have the time to deal with lots of specifics, or they feel that an agency full of experts would be more likely to do a good job with them, or they just don’t want to take the political heat for unpopular decisions (it’s a lot less risky to stand up for endangered species generally than it is to stop a $100 million development project because it might harass a couple of black-footed ferrets), Congress regularly lets the agencies deal with the details of federal law and policy.
    A few scholars and other observers think that because the language of Article I gives legislative power to Congress and nobody else, all this delegation of key policymaking power to agencies is simply unconstitutional. Even these critics, however, sort of have to concede that if they’re right about Article I, then the entire government as we know it would collapse. Perhaps recognizing this, the Supreme Court has long upheld congressional delegation of power to agencies, so long as Congress provides these agencies with some general “intelligible principle” to follow when the agencies go about their business. Theoretically, this “intelligible principle”test could be quite strict, but in fact the Court has held that almost anything—even Congress’s admonition to the Federal Communications Commission to regulate the airwaves “in the public interest”—counts as an intelligible principle. Indeed, the Supreme Court hasn’t struck down an act of Congress as violating this rule since 1935. The newly appointed members of the United States Metric Board may not have been particularly powerful, but at least they were constitutionally safe.
    So, what exactly did the United States Metric Board