Whitman v. American Trucking Assns.
531 U.S. 457 (2001)
No. 99-1257.
United States Supreme Court.
Argued November 7, 2000.
Decided February 27, 2001.[1]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
5[459] [459] Scalia, J., delivered the opinion of the Court, Parts I and IV of which were unanimous, Part II of which was joined by Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., and Part III of which was joined by Rehnquist, C. J., and O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ. Thomas, J., filed a concurring opinion, post, p. 486. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, J., joined, post, p. 487. Breyer, J., filed an opinion concurring in part and concurring in the judgment, post, p. 490.
6Solicitor General Waxman argued the cause for petitioners in No. 99-1257 and federal respondents in No. 99-1426. With him on the briefs were Assistant Attorney General Schiffer, Deputy Solicitor General Wallace, Jeffrey P. Minear, Christopher S. Vaden, David J. Kaplan, Mary F. Edgar, Gary S. Guzy, Gerald K. Gleason, and Michael L. Goo.
7[460] Edward W. Warren argued the cause for American Trucking Associations et al., respondents in No. 99-1257 and cross-petitioners in No. 99-1426. With him on the briefs were Robert R. Gasaway, Jeffrey B. Clark, Daryl Joseffer, Charles Fried, Robin S. Conrad, Beth L. Law, Robert S. Digges, Gary H. Baise, David M. Friedland, Erika Z. Jones, Timothy S. Bishop, Jan S. Amundson, Dimetria G. (Jim) Daskal, Douglas I. Greenhaus, and Chet M. Thompson. Judith L. French, Assistant Attorney General of Ohio, argued the cause for respondents State of Ohio et al. in No. 99-1257. With her on the brief in No. 99-1257 and on the briefs for State of Ohio et al., respondents in support of crosspetitioners in No. 99-1426, were Betty D. Montgomery, Attorney General, Edward B. Foley, State Solicitor, Elise W. Porter, Frank J. Reed, Jr., and James G. Tassie, Assistant Attorneys General, Mark J. Rudolph, Jennifer M. Granholm, Attorney General of Michigan, Thomas Casey, Solicitor General, and Alan F. Hoffman and Pamela J. Stevenson, Assistant Attorneys General. Thomas F. Reilly, Attorney General of Massachusetts, Edward G. Bohlen, Assistant Attorney General, Lisa Heinzerling, John J. Farmer, Attorney General of New Jersey, and Howard L. Geduldig and John R. Renella, Deputy Attorneys General, filed briefs for the Commonwealth of Massachusetts et al., respondents in support of petitioners in No. 99-1257 and respondents in No. 99-1426. Howard I. Fox filed briefs for the American Lung Association, respondent in support of petitioners in No. 99-1257 and respondent in No. 99-1426. Henry V. Nickel, F. William Brownell, Lucinda Minton Langworthy, David E. Menotti, William F. Pedersen, Jeffrey A. Knight, G. William Frick, M. Elizabeth Cox, Russel S. Frye, Richard Wasserstrom, Grant Crandall, David F. Zoll, Alexandra Dapolito Dunn, Julie Becker, Harold P. Quinn, Jr., Newman R. Porter, David M. Flannery, and Kurt E. Blase filed briefs for Appalachian Power Co. et al., respondents in [461] No. 99-1257 and respondents in support of cross-petitioners in No. 99-1426. Robert E. Yuhnke filed a brief for Citizens for Balanced Transportation et al., respondents in No. 99-1426.[2]
8These cases present the following questions: (1) Whether § 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA). (2) Whether the Administrator may consider the costs of implementation in setting national ambient air quality standards (NAAQS) under § 109(b)(1). (3) Whether the Court of Appeals had jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA, 42 U. S. C. §§ 7501-7515, with respect to implementing the revised ozone NAAQS. (4) If so, whether the EPA's interpretation of that part was permissible.
10Section 109(a) of the CAA, as added, 84 Stat. 1679, and amended, 42 U. S. C. § 7409(a), requires the Administrator of the EPA to promulgate NAAQS for each air pollutant for which "air quality criteria" have been issued under § 108, 42 U. S. C. § 7408. Once a NAAQS has been promulgated, the Administrator must review the standard (and the criteria [463] on which it is based) "at five-year intervals" and make "such revisions . . . as may be appropriate." CAA § 109(d)(1), 42 U. S. C. § 7409(d)(1). These cases arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38652 (codified in 40 CFR § 50.7 (1999)); NAAQS for Ozone, id., at 38856 (codified in 40 CFR §§ 50.9, 50.10 (1999)). American Trucking Associations, Inc., and its corespondents in No. 99-1257—which include, in addition to other private companies, the States of Michigan, Ohio, and West Virginia—challenged the new standards in the Court of Appeals for the District of Columbia Circuit, pursuant to 42 U. S. C. § 7607(b)(1).
12The District of Columbia Circuit accepted some of the challenges and rejected others. It agreed with the No. 99— 1257 respondents (hereinafter respondents) that § 109(b)(1) delegated legislative power to the Administrator in contravention of the United States Constitution, Art. I, § 1, because it found that the EPA had interpreted the statute to provide no "intelligible principle" to guide the agency's exercise of authority. American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027, 1034 (1999). The court thought, however, that the EPA could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of § 109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to the agency. Id., at 1038. (On this delegation point, Judge Tatel dissented, finding the statute constitutional as written. Id., at 1057.) On the second issue that the Court of Appeals addressed, it unanimously rejected respondents' argument that the court should depart from the rule of Lead Industries Assn., Inc. v. EPA, 647 F. 2d 1130, 1148 (CADC 1980), that the EPA may not consider the cost of implementing a NAAQS in setting the initial standard. It also rejected respondents' argument that the implementation provisions for ozone found in Part D, Subpart 2, of Title I of the CAA, 42 U. S. C. §§ 7511-7511f, were [464] so tied to the existing ozone standard that the EPA lacked the power to revise the standard. The court held that although Subpart 2 constrained the agency's method of implementing the new standard, 175 F. 3d, at 1050, it did not prevent the EPA from revising the standard and designating areas of the country as "nonattainment areas," see 42 U. S. C. § 7407(d)(1), by reference to it, 175 F. 3d, at 1047-1048. On the EPA's petition for rehearing, the panel adhered to its position on these points, and unanimously rejected the EPA's new argument that the court lacked jurisdiction to reach the implementation question because there had been no "final" implementation action. American Trucking Assns., Inc. v. EPA, 195 F. 3d 4 (CADC 1999). The Court of Appeals denied the EPA's suggestion for rehearing en banc, with five judges dissenting. Id., at 13.
13The Administrator and the EPA petitioned this Court for review of the first, third, and fourth questions described in the first paragraph of this opinion. Respondents conditionally cross-petitioned for review of the second question. We granted certiorari on both petitions, 529 U. S. 1129 (2000); 530 U. S. 1202 (2000), and scheduled the cases for argument in tandem. We have now consolidated the cases for purposes of decision.
14In Lead Industries Assn., Inc. v. EPA, supra, at 1148, the District of Columbia Circuit held that "economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109" of the CAA. In the present cases, the court adhered to that holding, 175 F. 3d, at 1040-1041, as it had done on many other occasions. See, e. g., American Lung Assn. v. EPA, 134 F. 3d 388, 389 (1998); NRDC v. Administrator, EPA, 902 F. 2d 962, 973 (1990), vacated in part on other grounds, NRDC v. EPA, 921 F. 2d 326 (CADC 1991); American Petroleum Institute v. Costle, 665 F. 2d 1176, 1185 (1981). Respondents argue that these [465] decisions are incorrect. We disagree; and since the first step in assessing whether a statute delegates legislative power is to determine what authority the statute confers, we address that issue of interpretation first and reach respondents' constitutional arguments in Part III, infra.
16Section 109(b)(1) instructs the EPA to set primary ambient air quality standards "the attainment and maintenance of which . . . are requisite to protect the public health" with "an adequate margin of safety." 42 U. S. C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, "is absolute." D. Currie, Air Pollution: Federal Law and Analysis 4-15 (1981). The EPA, "based on" the information about health effects contained in the technical "criteria" documents compiled under § 108(a)(2), 42 U. S. C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an "adequate" margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.
17Against this most natural of readings, respondents make a lengthy, spirited, but ultimately unsuccessful attack. They begin with the object of § 109(b)(1)'s focus, the "public health." When the term first appeared in federal clean air legislation—in the Act of July 14, 1955 (1955 Act), 69 Stat. 322, which expressed "recognition of the dangers to the public health" from air pollution—its ordinary meaning was "[t]he health of the community." Webster's New International Dictionary 2005 (2d ed. 1950). Respondents argue, however, that § 109(b)(1), as added by the Clean Air Amendments of 1970, 84 Stat. 1676, meant to use the term's secondary meaning: "[t]he ways and means of conserving the health [466] of the members of a community, as by preventive medicine, organized care of the sick, etc." Ibid. Words that can have more than one meaning are given content, however, by their surroundings, FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132-133 (2000); Jones v. United States, 527 U. S. 373, 389 (1999), and in the context of § 109(b)(1) this second definition makes no sense. Congress could not have meant to instruct the Administrator to set NAAQS at a level "requisite to protect" "the art and science dealing with the protection and improvement of community health." Webster's Third New International Dictionary 1836 (1981). We therefore revert to the primary definition of the term: the health of the public.
18Even so, respondents argue, many more factors than air pollution affect public health. In particular, the economic cost of implementing a very stringent standard might produce health losses sufficient to offset the health gains achieved in cleaning the air—for example, by closing down whole industries and thereby impoverishing the workers and consumers dependent upon those industries. That is unquestionably true, and Congress was unquestionably aware of it. Thus, Congress had commissioned in the Air Quality Act of 1967 (1967 Act) "a detailed estimate of the cost of carrying out the provisions of this Act; a comprehensive study of the cost of program implementation by affected units of government; and a comprehensive study of the economic impact of air quality standards on the Nation's industries, communities, and other contributing sources of pollution." § 2, 81 Stat. 505. The 1970 Congress, armed with the results of this study, see The Cost of Clean Air, S. Doc. No. 91-40 (1969) (publishing the results of the study), not only anticipated that compliance costs could injure the public health, but provided for that precise exigency. Section 110(f)(1) of the CAA permitted the Administrator to waive the compliance deadline for stationary sources if, inter [467] alia, sufficient control measures were simply unavailable and "the continued operation of such sources is essential . . . to the public health or welfare." 84 Stat. 1683 (emphasis added). Other provisions explicitly permitted or required economic costs to be taken into account in implementing the air quality standards. Section 111(b)(1)(B), for example, commanded the Administrator to set "standards of performance" for certain new sources of emissions that as specified in § 111(a)(1) were to "reflec[t] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated." Section 202(a)(2) prescribed that emissions standards for automobiles could take effect only "after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period." 84 Stat. 1690. See also § 202(b)(5)(C) (similar limitation for interim standards); § 211(c)(2) (similar limitation for fuel additives); § 231(b) (similar limitation for implementation of aircraft emission standards). Subsequent amendments to the CAA have added many more provisions directing, in explicit language, that the Administrator consider costs in performing various duties. See, e. g., 42 U. S. C. § 7545(k)(1) (reformulate gasoline to "require the greatest reduction in emissions . . . taking into consideration the cost of achieving such emissions reductions"); § 7547(a)(3) (emission reduction for nonroad vehicles to be set "giving appropriate consideration to the cost" of the standards). We have therefore refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted. See Union Elec. Co. v. EPA, 427 U. S. 246, 257, and n. 5 (1976). Cf. General Mo- tors Corp. v. United States, 496 U. S. 530, 538, 541 (1990) [468] (refusing to infer in certain provisions of the CAA deadlines and enforcement limitations that had been expressly imposed elsewhere).
19Accordingly, to prevail in their present challenge, respondents must show a textual commitment of authority to the EPA to consider costs in setting NAAQS under § 109(b)(1). And because § 109(b)(1) and the NAAQS for which it provides are the engine that drives nearly all of Title I of the CAA, 42 U. S. C. §§ 7401-7515, that textual commitment must be a clear one. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., supra, at 159-160. Respondents' textual arguments ultimately founder upon this principle.
20Their first claim is that § 109(b)(1)'s terms "adequate margin" and "requisite" leave room to pad health effects with cost concerns. Just as we found it "highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rateregulated to agency discretion—and even more unlikely that it would achieve that through such a subtle device as permission to `modify' rate-filing requirements," MCI Telecommunications Corp. v. American Telephone & Telegraph Co., supra, at 231, so also we find it implausible that Congress would give to the EPA through these modest words the power to determine whether implementation costs should moderate national air quality standards. Accord, Christensen v. Harris County, 529 U. S. 576, 590, n. (2000) (Scalia, J., concurring in part and concurring in judgment) ("The implausibility of Congress's leaving a highly significant issue unaddressed (and thus `delegating' its resolution to the administering agency) is assuredly one of the factors [469] to be considered in determining whether there is ambiguity" (emphasis deleted)).[3]
21The same defect inheres in respondents' next two arguments: that while the Administrator's judgment about what is requisite to protect the public health must be "based on [the] criteria" documents developed under § 108(a)(2), see § 109(b)(1), it need not be based solely on those criteria; and that those criteria themselves, while they must include "effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air," are not necessarily limited to those effects. Even if we were to concede those premises, we still would not conclude that one of the unenumerated factors that the agency can consider in developing and applying the criteria is cost of implementation. That factor is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in §§ 108 and 109 had Congress meant it to be considered. Yet while those provisions describe in detail how the health effects of pollutants in the ambient air are to be calculated and given effect, see § 108(a)(2), they say not a word about costs.
22Respondents point, finally, to a number of provisions in the CAA that do require attainment cost data to be generated. Section 108(b)(1), for example, instructs the Administrator to "issue to the States," simultaneously with the criteria documents, "information on air pollution control techniques, which information shall include data relating to the cost of installation and operation." 42 U. S. C. § 7408(b)(l). And [470] § 109(d)(2)(C)(iv) requires the Clean Air Scientific Advisory Committee to "advise the Administrator of any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance" of NAAQS.[4] 42 U. S. C. § 7409(d)(2)(C)(iv). Respondents argue that these provisions make no sense unless costs are to be considered in setting the NAAQS. That is not so. These provisions enable the Administrator to assist the States in carrying out their statutory role as primary implementers of the NAAQS. It is to the States that the CAA assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources. See 42 U. S. C. §§ 7407(a), 7410 (giving States the duty of developing implementation plans). It would be impossible to perform that task intelligently without considering which abatement technologies are most efficient, and most economically feasible—which is why we have said that "the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan," Union Elec. Co. v. EPA, 427 U. S., at 266. Thus, federal clean air legislation has, from the very beginning, directed federal agencies to develop and transmit implementation data, including cost data, to the States. See 1955 Act, [471] § 2(b), 69 Stat. 322; Clean Air Act of 1963, amending §§ 3(a), (b) of the CAA, 77 Stat. 394; 1967 Act, §§ 103(a)—(d), 104, 107(c), 81 Stat. 486-488. That Congress chose to carry forward this research program to assist States in choosing the means through which they would implement the standards is perfectly sensible, and has no bearing upon whether cost considerations are to be taken into account in formulating the standards.[5]
23It should be clear from what we have said that the canon requiring texts to be so construed as to avoid serious constitutional problems has no application here. No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text. See, e. g., Miller v. French, 530 U. S. 327, 341 (2000); Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998). The text of § 109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process, and thus ends the matter for us as well as the EPA.[6] We therefore affirm the judgment of the Court of Appeals on this point.
24Section 109(b)(1) of the CAA instructs the EPA to set "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect the public health." 42 U. S. C. § 7409(b)(1). The Court of Appeals held that this section as interpreted by the Administrator did not provide an "intelligible principle" to guide the EPA's exercise of authority in setting NAAQS. "[The] EPA," it said, "lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much." 175 F. 3d, at 1034. The court hence found that the EPA's interpretation (but not the statute itself) violated the nondelegation doctrine. Id., at 1038. We disagree.
26In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, § 1, of the Constitution vests "[a]ll legislative Powers herein granted . . . in a Congress of the United States." This text permits no delegation of those powers, Loving v. United States, 517 U. S. 748, 771 (1996); see id., at 776-777 (Scalia, J., concurring in part and concurring in judgment), and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. Both Fahey v. Mallonee, 332 U. S. 245, 252-253 (1947), and Lichter v. United States, 334 U. S. 742, 783 (1948), mention agency regulations in the course of their nondelegation discussions, but Lichter did so because a subsequent Congress had incorporated the regulations into a revised version of the statute, ibid., and Fahey because the customary [473] practices in the area, implicitly incorporated into the statute, were reflected in the regulations, 332 U. S., at 250. The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise—that is to say, the prescription of the standard that Congress had omitted—would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary selfdenial has no bearing upon the answer.
27We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a minimum requires that "[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air." Tr. of Oral Arg. in No. 99-1257, p. 5. Requisite, in turn, "mean[s] sufficient, but not more than necessary." Id., at 7. These limits on the EPA's discretion are strikingly similar to the ones we approved in Touby v. United States, 500 U. S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was "`necessary to avoid an imminent hazard to the public safety.' " Id., at 163. They also resemble the Occupational Safety and Health Act of 1970 provision requiring the agency to "`set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health' "—which the Court upheld in Industrial Union Dept., AFL—CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980), and which even then-Justice Rehnquist, who alone in that case thought the statute violated the nondelegation doctrine, see id., at 671 (opinion concurring in judgment), would have upheld if, like the statute [474] here, it did not permit economic costs to be considered. See American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 545 (1981) (Rehnquist, J., dissenting).
28The scope of discretion § 109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite "intelligible principle" lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring "fair competition." See Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). We have, on the other hand, upheld the validity of § 11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not "unduly or unnecessarily complicate[d]" and do not "unfairly or inequitably distribute voting power among security holders." American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that "`will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.' " Yakus v. United States, 321 U. S. 414, 420, 423-426 (1944). And we have found an "intelligible principle" in various statutes authorizing regulation in the "public interest." See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943) (Federal Communications Commission's power to regulate airwaves); New York Central Securities Corp. v. United States, 287 U. S. 12, 24-25 (1932) (Interstate Commerce Commission's power to approve railroad consolidations). In short, we have "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying [475] the law." Mistretta v. United States, 488 U. S. 361, 416 (1989) (Scalia, J., dissenting); see id., at 373 (majority opinion).
29It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. See Loving v. United States, 517 U. S., at 772-773; United States v. Mazurie, 419 U. S. 544, 556-557 (1975). While Congress need not provide any direction to the EPA regarding the manner in which it is to define "country elevators," which are to be exempt from newstationary-source regulations governing grain elevators, see 42 U. S. C. § 7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a "determinate criterion" for saying "how much [of the regulated harm] is too much." 175 F. 3d, at 1034. In Touby, for example, we did not require the statute to decree how "imminent" was too imminent, or how "necessary" was necessary enough, or even—most relevant here—how "hazardous" was too hazardous. 500 U. S., at 165-167. Similarly, the statute at issue in Lichter authorized agencies to recoup "excess profits" paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. 334 U. S., at 783-786. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are "nonthreshold" pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. "[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action." Mistretta v. United States, supra, at 417 (Scalia, J., dissenting) (emphasis deleted); see 488 U. S., at 378-379 (majority opinion). Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is "requisite"—that [476] is, not lower or higher than is necessary—to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.
30We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power. It will remain for the Court of Appeals—on the remand that we direct for other reasons—to dispose of any other preserved challenge to the NAAQS under the judicial-review provisions contained in 42 U. S. C. § 7607(d)(9).
31The final two issues on which we granted certiorari concern the EPA's authority to implement the revised ozone NAAQS in areas whose ozone levels currently exceed the maximum level permitted by that standard. The CAA designates such areas "nonattainment," § 107(d)(1), 42 U. S. C. § 7407(d)(1); see also Pub. L. 105-178, § 6103, 112 Stat. 465 (setting timeline for new ozone designations), and it exposes them to additional restrictions over and above the implementation requirements imposed generally by § 110 of the CAA. These additional restrictions are found in the five substantive subparts of Part D of Title I, 42 U. S. C. §§ 7501-7515. Subpart 1, §§ 7501-7509a, contains general nonattainment regulations that pertain to every pollutant for which a NAAQS exists. Subparts 2 through 5, §§ 7511— 7514a, contain rules tailored to specific individual pollutants. Subpart 2, added by the Clean Air Act Amendments of 1990, § 103, 104 Stat. 2423, addresses ozone. 42 U. S. C. §§ 7511— 7511f. The dispute before us here, in a nutshell, is whether Subpart 1 alone (as the agency determined), or rather Subpart 2 or some combination of Subparts 1 and 2, controls the implementation of the revised ozone NAAQS in nonattainment areas.
33The Administrator first urges, however, that we vacate the judgment of the Court of Appeals on this issue because it lacked jurisdiction to review the EPA's implementation policy. Section 307(b)(1) of the CAA, 42 U. S. C. § 7607(b)(1), gives the court jurisdiction over "any . . . nationally applicable regulations promulgated, or final action taken, by the Administrator," but the EPA argues that its implementation policy was not agency "action," was not "final" action, and is not ripe for review. We reject each of these three contentions.
35At the same time the EPA proposed the revised ozone NAAQS in 1996, it also proposed an "interim implementation policy" for the NAAQS, see 61 Fed. Reg. 65752 (1996), that was to govern until the details of implementation could be put in final form through specific "rulemaking actions." The preamble to this proposed policy declared that "the interim implementation policy . . . represent[s] EPA's preliminary views on these issues and, while it may include various statements that States must take certain actions, these statements are made pursuant to EPA's preliminary interpretations, and thus do not bind the States and public as a matter of law." Ibid. If the EPA had done no more, we perhaps could accept its current claim that its action was not final. However, after the agency had accepted comments on its proposed policy, and on the same day that the final ozone NAAQS was promulgated, the White House published in the Federal Register what it titled a "Memorandum for the Administrator of the Environmental Protection Agency" that prescribed implementation procedures for the EPA to follow. 62 Fed. Reg. 38421 (1997). (For purposes of our analysis we shall assume that this memorandum was not itself action by the EPA.) The EPA supplemented this memorandum with an explanation of the implementation procedures, which it published in the explanatory preamble to its final ozone [478] NAAQS under the heading, "Final decision on the primary standard." Id., at 38873. "In light of comments received regarding the interpretation proposed in the Interim Implementation Policy," the EPA announced, it had "reconsidered that interpretation" and settled on a new one. Ibid. The provisions of "subpart 1 of part D of Title I of the Act" will immediately "apply to the implementation of the new 8-hour [ozone] standards." Ibid.; see also id., at 38885 (new standard to be implemented "simultaneously [with the old standard] . . . under the provisions of . . . subpart 1"). Moreover, the provisions of subpart 2 "will [also] continue to apply as a matter of law for so long as an area is not attaining the [old] 1-hour standard." Id., at 38873. Once the area reaches attainment for the old standard, however, "the provisions of subpart 2 will have been achieved and those provisions will no longer apply." Ibid.; see also id., at 38884-38885.
36We have little trouble concluding that this constitutes final agency action subject to review under § 307. The bite in the phrase "final action" (which bears the same meaning in § 307(b)(1) that it does under the Administrative Procedure Act (APA), 5 U. S. C. § 704, see Harrison v. PPG Industries, Inc., 446 U. S. 578, 586 (1980)), is not in the word "action," which is meant to cover comprehensively every manner in which an agency may exercise its power. See FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 238, n. 7 (1980). It is rather in the word "final," which requires that the action under review "mark the consummation of the agency's decisionmaking process." Bennett v. Spear, 520 U. S. 154, 177-178 (1997). Only if the "EPA has rendered its last word on the matter" in question, Harrison v. PPG Industries, Inc., supra, at 586, is its action "final" and thus reviewable. That standard is satisfied here. The EPA's "decisionmaking process," which began with the 1996 proposal and continued with the reception of public comments, concluded [479] when the agency, "in light of [these comments]," and in conjunction with a corresponding directive from the White House, adopted the interpretation of Part D at issue here. Since that interpretation issued, the EPA has refused in subsequent rulemakings to reconsider it, explaining to disappointed commenters that its earlier decision was conclusive. See 63 Fed. Reg. 31014, 31018-31019 (1998). Though the agency has not dressed its decision with the conventional procedural accoutrements of finality, its own behavior thus belies the claim that its interpretation is not final.
37The decision is also ripe for our review. "Ripeness `requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.' " Texas v. United States, 523 U. S. 296, 300-301 (1998) (quoting Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). The question before us here is purely one of statutory interpretation that would not "benefit from further factual development of the issues presented." Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 733 (1998). Nor will our review "inappropriately interfere with further administrative action," ibid., since the EPA has concluded its consideration of the implementation issue. Finally, as for hardship to the parties: The respondent States must—on pain of forfeiting to the EPA control over implementation of the NAAQS—promptly undertake the lengthy and expensive task of developing state implementation plans (SIP's) that will attain the new, more stringent standard within five years. See 42 U. S. C. §§ 7410, 7502. Whether or not this would suffice in an ordinary case brought under the review provisions of the APA, see 5 U. S. C. § 704, we have characterized the special judicial-review provision of the CAA, 42 U. S. C. § 7607(b), as one of those statutes that specifically provides for "preenforcement" review, see Ohio Forestry Assn., Inc. v. Sierra Club, supra, at 737. Such statutes, we have said, permit "judicial review directly, even before the [480] concrete effects normally required for APA review are felt." Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990). The effects at issue here surely meet that lower standard.
38Beyond all this, the implementation issue was fairly included within the challenges to the final ozone rule that were properly before the Court of Appeals. Respondents argued below that the EPA could not revise the ozone standard, because to do so would trigger the use of Subpart 1, which had been supplanted (for ozone) by the specific rules of Subpart 2. Brief for Industry Petitioners and Intervenors in No. 97-1441 (and consolidated cases) (CADC), pp. 32-34. The EPA responded that Subpart 2 did not supplant but simply supplemented Subpart 1, so that the latter section still "applies to all nonattainment areas for all NAAQS,. . . including nonattainment areas for any revised ozone standard." Final Brief for EPA in No. 97-1441 (and consolidated cases) (CADC), pp. 67-68. The agency later reiterated that Subpart 2 "does not supplant implementation provisions for revised ozone standards. This interpretation fully harmonizes Subpart 2 with EPA's clear authority to revise any NAAQS." Id., at 71. In other words, the EPA was arguing that the revised standard could be issued, despite its apparent incompatibility with portions of Subpart 2, because it would be implemented under Subpart 1 rather than Subpart 2. The District of Columbia Circuit ultimately agreed that Subpart 2 could be harmonized with the EPA's authority to promulgate revised NAAQS, but not because Subpart 2 is entirely inapplicable—which is one of EPA's assignments of error. It is unreasonable to contend, as the EPA now does, that the Court of Appeals was obligated to reach the agency's preferred result, but forbidden to assess the reasons the EPA had given for reaching that result. The implementation issue was fairly included within respondents' challenge to the ozone rule, which all parties agree is final agency action ripe for review.
39Our approach to the merits of the parties' dispute is the familiar one of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). If the statute resolves the question whether Subpart 1 or Subpart 2 (or some combination of the two) shall apply to revised ozone NAAQS, then "that is the end of the matter." Id., at 842— 843. But if the statute is "silent or ambiguous" with respect to the issue, then we must defer to a "reasonable interpretation made by the administrator of an agency." Id., at 844. We cannot agree with the Court of Appeals that Subpart 2 clearly controls the implementation of revised ozone NAAQS, see 175 F. 3d, at 1048-1050, because we find the statute to some extent ambiguous. We conclude, however, that the agency's interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear. We therefore hold the implementation policy unlawful. See AT&T; Corp. v. Iowa Utilities Bd., 525 U. S. 366, 392 (1999).
41The text of Subpart 1 at first seems to point the way to a clear answer to the question, which Subpart controls? Two sections of Subpart 1, 7502(a)(1)(C) and 7502(a)(2)(D), contain switching provisions stating that if the classification of ozone nonattainment areas is "specifically provided [for] under other provisions of [Part D]," then those provisions will control instead of Subpart 1's. Thus, it is true but incomplete to note, as the Administrator does, that the substantive language of Subpart 1 is broad enough to apply to revised ozone standards. See, e. g., § 7502(a)(1)(A) (instructing the Administrator to classify nonattainment areas according to "any revised standard, including a revision of any standard in effect on November 15, 1990"); § 7502(a)(2)(A) (setting attainment deadlines). To determine whether that language does apply one must resolve the further textual issue whether some other provision, namely Subpart 2, provides for the classification of ozone nonattainment areas. If [482] it does, then according to the switching provisions of Subpart 1 it will control.
42So, does Subpart 2 provide for classifying nonattainment ozone areas under the revised standard? It unquestionably does. The backbone of the subpart is Table 1, printed in § 7511(a)(1) and reproduced in the margin here,[7] which defines five categories of ozone nonattainment areas and prescribes attainment deadlines for each. Section 7511(a)(1) funnels all nonattainment areas into the table for classification, declaring that "[e]ach area designated nonattainment for ozone . . . shall be classified at the time of such designation, under table 1, by operation of law." And once an area has been classified, "the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1." The EPA argues that this text is not as clear or comprehensive as it seems, because the title of § 7511(a) reads "Classification and attainment dates for 1989 nonattainment areas," which suggests that Subpart 2 applies only to areas that were in nonattainment in 1989, and not to areas later designated nonattainment [483] under a revised ozone standard. The suggestion must be rejected, however, because § 7511(b)(1) specifically provides for the classification of areas that were in attainment in 1989 but have subsequently slipped into nonattainment. It thus makes clear that Subpart 2 is not limited solely to 1989 nonattainment areas. This eliminates the interpretive role of the title, which may only "she[d] light on some ambiguous word or phrase in the statute itself," Carter v. United States, 530 U. S. 255, 267 (2000) (internal quotation marks omitted) (quoting Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S., at 212, in turn quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947)).
43It may well be, as the EPA argues—and as the concurring opinion below on denial of rehearing pointed out, see 195 F. 3d, at 11-12—that some provisions of Subpart 2 are ill fitted to implementation of the revised standard. Using the old 1-hour averages of ozone levels, for example, as Subpart 2 requires, see § 7511(a)(1); 44 Fed. Reg. 8202 (1979), would produce at best an inexact estimate of the new 8-hour averages, see 40 CFR § 50.10, and App. I (1999). Also, to the extent that the new ozone standard is stricter than the old one, see Reply Brief for Petitioners in No. 99-1257, p. 17 ("the stricter 8-hour NAAQS"); 62 Fed. Reg. 38856, 38858 (1997) (8-hour standard of 0.09 ppm rather than 0.08 ppm would have "generally represent[ed] the continuation of the [old] level of protection"), the classification system of Subpart 2 contains a gap, because it fails to classify areas whose ozone levels are greater than the new standard (and thus nonattaining) but less than the approximation of the old standard codified by Table 1. And finally, Subpart 2's method for calculating attainment dates—which is simply to count forward a certain number of years from November 15, 1990 (the date the 1990 CAA Amendments took force), depending on how far out of attainment the area started—seems to make no sense for areas that are first classified under a new standard after November 15, 1990. [484] If, for example, areas were classified in the year 2000, many of the deadlines would already have expired at the time of classification.
44These gaps in Subpart 2's scheme prevent us from concluding that Congress clearly intended Subpart 2 to be the exclusive, permanent means of enforcing a revised ozone standard in nonattainment areas. The statute is in our view ambiguous concerning the manner in which Subpart 1 and Subpart 2 interact with regard to revised ozone standards, and we would defer to the EPA's reasonable resolution of that ambiguity. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S., at 132; INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999). We cannot defer, however, to the interpretation the EPA has given.
45Whatever effect may be accorded the gaps in Subpart 2 as implying some limited applicability of Subpart 1, they cannot be thought to render Subpart 2's carefully designed restrictions on EPA discretion utterly nugatory once a new standard has been promulgated, as the EPA has concluded. The principal distinction between Subpart 1 and Subpart 2 is that the latter eliminates regulatory discretion that the former allowed. While Subpart 1 permits the EPA to establish classifications for nonattainment areas, Subpart 2 classifies areas as a matter of law based on a table. Compare § 7502(a)(1) with § 7511(a)(1) (Table 1). Whereas the EPA has discretion under Subpart 1 to extend attainment dates for as long as 12 years, under Subpart 2 it may grant no more than 2 years' extension. Compare §§ 7502(a)(2)(A) and (C) with § 7511(a)(5). Whereas Subpart 1 gives the EPA considerable discretion to shape nonattainment programs, Subpart 2 prescribes large parts of them by law. Compare §§ 7502(c) and (d) with § 7511a. Yet according to the EPA, Subpart 2 was simply Congress's "approach to the implementation of the [old] 1-hour" standard, and so there was no reason that "the new standard could not simultaneously be implemented under . . . subpart 1." 62 Fed. Reg. [485] 38856, 38885 (1997); see also id., at 38873 ("[T]he provisions of subpart 1 . . . would apply to the implementation of the new 8-hour ozone standards"). To use a few apparent gaps in Subpart 2 to render its textually explicit applicability to nonattainment areas under the new standard utterly inoperative is to go over the edge of reasonable interpretation. The EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.
46The EPA's interpretation making Subpart 2 abruptly obsolete is all the more astonishing because Subpart 2 was obviously written to govern implementation for some time. Some of the elements required to be included in SIP's under Subpart 2 were not to take effect until many years after the passage of the CAA. See § 7511a(e)(3) (restrictions on "electric utility and industrial and commercial boiler[s]" to be "effective 8 years after November 15, 1990"); § 7511a(c)(5)(A) (vehicle monitoring program to "[b]egi[n] 6 years after November 15, 1990"); § 7511a(g)(1) (emissions milestone requirements to be applied "6 years after November 15, 1990, and at intervals of every 3 years thereafter"). A plan reaching so far into the future was not enacted to be abandoned the next time the EPA reviewed the ozone standard—which Congress knew could happen at any time, since the technical staff papers had already been completed in late 1989. See 58 Fed. Reg. 13008, 13010 (1993); see also 42 U. S. C. § 7409(d)(1) (NAAQS must be reviewed and, if appropriate, revised at least once every five years). Yet nothing in the EPA's interpretation would have prevented the agency from aborting Subpart 2 the day after it was enacted. Even now, if the EPA's interpretation were correct, some areas of the country could be required to meet the new, more stringent ozone standard in at most the same time that Subpart 2 had allowed them to meet the old standard. Compare § 7502(a)(2) (Subpart 1 attainment dates) with § 7511(a) (Subpart 2 attainment dates). Los Angeles, for instance, "would [486] be required to attain the revised NAAQS under Subpart 1 no later than the same year that marks the outer time limit for attaining Subpart 2's one-hour ozone standard." Brief for Petitioners in No. 99-1257, p. 49. An interpretation of Subpart 2 so at odds with its structure and manifest purpose cannot be sustained.
47We therefore find the EPA's implementation policy to be unlawful, though not in the precise respect determined by the Court of Appeals. After our remand, and the Court of Appeals' final disposition of these cases, it is left to the EPA to develop a reasonable interpretation of the nonattainment implementation provisions insofar as they apply to revised ozone NAAQS.
48To summarize our holdings in these unusually complex cases: (1) The EPA may not consider implementation costs in setting primary and secondary NAAQS under § 109(b) of the CAA. (2) Section 109(b)(1) does not delegate legislative power to the EPA in contravention of Art. I, § 1, of the Constitution. (3) The Court of Appeals had jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA, relating to the implementation of the revised ozone NAAQS. (4) The EPA's interpretation of that Part is unreasonable.
50The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for proceedings consistent with this opinion.
51It is so ordered.
52Justice Thomas, concurring.
53I agree with the majority that § 109's directive to the agency is no less an "intelligible principle" than a host of other directives that we have approved. Ante, at 474-476. I also agree that the Court of Appeals' remand to the agency to make its own corrective interpretation does not accord with our understanding of the delegation issue. Ante, at 472-473. I write separately, however, to express my concern [487] that there may nevertheless be a genuine constitutional problem with § 109, a problem which the parties did not address.
54The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the "intelligible principle" requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928), the Constitution does not speak of "intelligible principles." Rather, it speaks in much simpler terms: "All legislative Powers herein granted shall be vested in a Congress." U. S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than "legislative."
55As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers.
56Justice Stevens, with whom Justice Souter joins, concurring in part and concurring in the judgment.
57Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, ante, at 472-476, the Court convincingly explains why the Court of Appeals erred when it concluded that § 109 effected "an unconstitutional delegation of legislative power." American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027, 1033 (CADC 1999) (per curiam). [488] I wholeheartedly endorse the Court's result and endorse its explanation of its reasons, albeit with the following caveat.
58The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is "legislative" but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not "legislative power." Despite the fact that there is language in our opinions that supports the Court's articulation of our holding,[8] I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is "legislative power."[9]
59The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it. See Black's Law Dictionary 899 (6th ed. 1990) (defining "legislation" as, inter alia, "[f]ormulation of rule[s] for the future"); 1 K. Davis & R. Pierce, Administrative Law Treatise § 2.3, p. 37 (3d ed. 1994) ("If legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely by [489] promulgating what are candidly called `legislative rules' "). If the NAAQS that the EPA promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of "legislative power." The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress.
60My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested "All legislative Powers" in the Congress, Art. I, § 1, just as in Article II they vested the "executive Power" in the President, Art. II, § 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See Bowsher v. Synar, 478 U. S. 714, 752 (1986) (Stevens, J., concurring in judgment) ("Despite the statement in Article I of the Constitution that `All legislative powers herein granted shall be vested in a Congress of the United States,' it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers"); INS v. Chadha, 462 U. S. 919, 985-986 (1983) (White, J., dissenting) ("[L]egislative power can be exercised by independent agencies and Executive departments . . ."); 1 Davis & Pierce, Administrative Law Treatise § 2.6, at 66 ("The Court was probably mistaken from the outset in interpreting Article I's grant of power to Congress as an implicit limit on Congress' authority to delegate legislative power"). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as "Executive" even though not exercised by the President. Cf. Morrison v. Olson, 487 U. S. 654, 705-706 (1988) (Scalia, J., dissenting) (arguing that the independent counsel exercised "executive power" unconstrained by the President).
61It seems clear that an executive agency's exercise of rulemaking authority pursuant to a valid delegation from Congress is "legislative." As long as the delegation provides a [490] sufficiently intelligible principle, there is nothing inherently unconstitutional about it. Accordingly, while I join Parts I, II, and IV of the Court's opinion, and agree with almost everything said in Part III, I would hold that when Congress enacted § 109, it effected a constitutional delegation of legislative power to the EPA.
62Justice Breyer, concurring in part and concurring in the judgment.
63I join Parts I, III, and IV of the Court's opinion. I also agree with the Court's determination in Part II that the Clean Air Act does not permit the Environmental Protection Agency to consider the economic costs of implementation when setting national ambient air quality standards under § 109(b)(1) of the Act. But I would not rest this conclusion solely upon § 109's language or upon a presumption, such as the Court's presumption that any authority the Act grants the EPA to consider costs must flow from a "textual commitment" that is "clear." Ante, at 468. In order better to achieve regulatory goals—for example, to allocate resources so that they save more lives or produce a cleaner environment—regulators must often take account of all of a proposed regulation's adverse effects, at least where those adverse effects clearly threaten serious and disproportionate public harm. Hence, I believe that, other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting, not forbidding, this type of rational regulation.
64In these cases, however, other things are not equal. Here, legislative history, along with the statute's structure, indicates that § 109's language reflects a congressional decision not to delegate to the agency the legal authority to consider economic costs of compliance.
65For one thing, the legislative history shows that Congress intended the statute to be "technology forcing." Senator Edmund Muskie, the primary sponsor of the 1970 amendments [491] to the Act, introduced them by saying that Congress' primary responsibility in drafting the Act was not "to be limited by what is or appears to be technologically or economically feasible," but "to establish what the public interest requires to protect the health of persons," even if that means that "industries will be asked to do what seems to be impossible at the present time." 116 Cong. Rec. 32901-32902 (1970), 1 Legislative History of the Clean Air Amendments of 1970 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-18, p. 227 (1974) (hereinafter Leg. Hist.) (emphasis added).
66The Senate directly focused upon the technical feasibility and cost of implementing the Act's mandates. And it made clear that it intended the Administrator to develop air quality standards set independently of either. The Senate Report for the 1970 amendments explains:
6768"In the Committee discussions, considerable concern was expressed regarding the use of the concept of technical feasibility as the basis of ambient air standards. The Committee determined that 1) the health of people is more important than the question of whether the early achievement of ambient air quality standards protective of health is technically feasible; and, 2) the growth of pollution load in many areas, even with application of available technology, would still be deleterious to public health. . . .
"Therefore, the Committee determined that existing sources of pollutants either should meet the standard of the law or be closed down . . . ." S. Rep. No. 91-1196, pp. 2-3 (1970), 1 Leg. Hist. 402-403 (emphasis added).
Indeed, this Court, after reviewing the entire legislative history, concluded that the 1970 amendments were "expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible." Union Elec. Co. [492] v. EPA, 427 U. S. 246, 257 (1976) (emphasis added). And the Court added that the 1970 amendments were intended to be a "drastic remedy to . . . a serious and otherwise uncheckable problem." Id., at 256. Subsequent legislative history confirms that the technology-forcing goals of the 1970 amendments are still paramount in today's Act. See Clean Air Conference Report (1977): Statement of Intent; Clarification of Select Provisions, 123 Cong. Rec. 27070 (1977) (stating, regarding the 1977 amendments to the Act, that "this year's legislation retains and even strengthens the technology forcing . . . goals of the 1970 Act"); S. Rep. No. 101-228, p. 5 (1989) (stating that the 1990 amendments to the Act require ambient air quality standards to be set at "the level that `protects the public health' with an `adequate margin of safety,' without regard to the economic or technical feasibility of attainment" (emphasis added)).
69To read this legislative history as meaning what it says does not impute to Congress an irrational intent. Technology-forcing hopes can prove realistic. Those persons, for example, who opposed the 1970 Act's insistence on a 90% reduction in auto emission pollutants, on the ground of excessive cost, saw the development of catalytic converter technology that helped achieve substantial reductions without the economic catastrophe that some had feared. See § 6(a) of the Clean Air Act Amendments of 1970, amending §§ 202(b)(1)(A), (B), 84 Stat. 1690 (codified at 42 U. S. C. §§ 7521(b)(1)(A), (B)) (requiring a 90% reduction in emissions); 1 Leg. Hist. 238, 240 (statement of Sen. Griffin) (arguing that the emissions standards could "force [the automobile] industry out of existence" because costs "would not be taken into account"); see generally Reitze, Mobile Source Air Pollution Control, 6 Env. Law. 309, 326-327 (2000) (discussing the development of the catalytic converter).
70At the same time, the statute's technology-forcing objective makes regulatory efforts to determine the costs of implementation both less important and more difficult. It [493] means that the relevant economic costs are speculative, for they include the cost of unknown future technologies. It also means that efforts to take costs into account can breed time-consuming and potentially unresolvable arguments about the accuracy and significance of cost estimates. Congress could have thought such efforts not worth the delays and uncertainties that would accompany them. In any event, that is what the statute's history seems to say. See Union Elec., supra, at 256-259. And the matter is one for Congress to decide.
71Moreover, the Act does not, on this reading, wholly ignore cost and feasibility. As the majority points out, ante, at 466-467, the Act allows regulators to take those concerns into account when they determine how to implement ambient air quality standards. Thus, States may consider economic costs when they select the particular control devices used to meet the standards, and industries experiencing difficulty in reducing their emissions can seek an exemption or variance from the state implementation plan. See Union Elec., supra, at 266 ("[T]he most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan").
72The Act also permits the EPA, within certain limits, to consider costs when it sets deadlines by which areas must attain the ambient air quality standards. 42 U. S. C. § 7502(a)(2)(A) (providing that "the Administrator may extend the attainment date . . . for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures"); § 7502(a)(2)(C) (permitting the Administrator to grant up to two additional 1-year extensions); cf. §§ 7511(a)(1), (5) (setting more rigid attainment deadlines for areas in nonattainment of the ozone standard, but permitting the Administrator to grant up to two 1-year extensions). And Congress can change those statutory limits if necessary. Given the ambient air quality [494] standards' substantial effects on States, cities, industries, and their suppliers and customers, Congress will hear from those whom compliance deadlines affect adversely, and Congress can consider whether legislative change is warranted. See, e. g., Steel Industry Compliance Extension Act of 1981, 95 Stat. 139 (codified at 42 U. S. C. § 7413(e) (1988 ed.)) (repealed 1990) (granting the Administrator discretion to extend the ambient air quality standard attainment date set in the 1977 Act by up to three years for steelmaking facilities).
73Finally, contrary to the suggestion of the Court of Appeals and of some parties, this interpretation of § 109 does not require the EPA to eliminate every health risk, however slight, at any economic cost, however great, to the point of "hurtling" industry over "the brink of ruin," or even forcing "deindustrialization." American Trucking Assns., Inc. v. EPA, 175 F. 3d 1027, 1037, 1038, n. 4 (CADC 1999); see also Brief for Cross-Petitioners in No. 99-1426, p. 25. The statute, by its express terms, does not compel the elimination of all risk; and it grants the Administrator sufficient flexibility to avoid setting ambient air quality standards ruinous to industry.
74Section 109(b)(1) directs the Administrator to set standards that are "requisite to protect the public health" with "an adequate margin of safety." But these words do not describe a world that is free of all risk—an impossible and undesirable objective. See Industrial Union Dept., AFL—CIO v. American Petroleum Institute, 448 U. S. 607, 642 (1980) (plurality opinion) (the word "safe" does not mean "riskfree"). Nor are the words "requisite" and "public health" to be understood independent of context. We consider football equipment "safe" even if its use entails a level of risk that would make drinking water "unsafe" for consumption. And what counts as "requisite" to protecting the public health will similarly vary with background circumstances, such as the public's ordinary tolerance of the particular health risk in the particular context at issue. The Administrator can [495] consider such background circumstances when "decid[ing] what risks are acceptable in the world in which we live." Natural Resources Defense Council, Inc. v. EPA, 824 F. 2d 1146, 1165 (CADC 1987).
75The statute also permits the Administrator to take account of comparative health risks. That is to say, she may consider whether a proposed rule promotes safety overall. A rule likely to cause more harm to health than it prevents is not a rule that is "requisite to protect the public health." For example, as the Court of Appeals held and the parties do not contest, the Administrator has the authority to determine to what extent possible health risks stemming from reductions in tropospheric ozone (which, it is claimed, helps prevent cataracts and skin cancer) should be taken into account in setting the ambient air quality standard for ozone. See 175 F. 3d, at 1050-1053 (remanding for the Administrator to make that determination).
76The statute ultimately specifies that the standard set must be "requisite to protect the public health" "in the judgment of the Administrator," § 109(b)(1), 84 Stat. 1680 (emphasis added), a phrase that grants the Administrator considerable discretionary standard-setting authority.
77The statute's words, then, authorize the Administrator to consider the severity of a pollutant's potential adverse health effects, the number of those likely to be affected, the distribution of the adverse effects, and the uncertainties surrounding each estimate. Cf. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 364 (1999). They permit the Administrator to take account of comparative health consequences. They allow her to take account of context when determining the acceptability of small risks to health. And they give her considerable discretion when she does so.
78This discretion would seem sufficient to avoid the extreme results that some of the industry parties fear. After all, the EPA, in setting standards that "protect the public health" [496] with "an adequate margin of safety," retains discretionary authority to avoid regulating risks that it reasonably concludes are trivial in context. Nor need regulation lead to deindustrialization. Preindustrial society was not a very healthy society; hence a standard demanding the return of the Stone Age would not prove "requisite to protect the public health."
79Although I rely more heavily than does the Court upon legislative history and alternative sources of statutory flexibility, I reach the same ultimate conclusion. Section 109 does not delegate to the EPA authority to base the national ambient air quality standards, in whole or in part, upon the economic costs of compliance.
80[1] Together with No. 99-1426, American Trucking Associations, Inc., et al. v. Whitman, Administrator of Environmental Protection Agency, et al., also on certiorari to the same court.
81[2] Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, Daniel X. Smirlock, Deputy Solicitor General, and Lisa Feiner and J. Jared Snyder, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Richard Blumenthal of Connecticut, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Philip McLaughlin of New Hampshire, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, and William H. Sorrell of Vermont; for the State of North Carolina by Michael F. Easley, Attorney General, Daniel C. Oakley, Senior Deputy Attorney General, and Marc D. Bernstein, Assistant Attorney General; for the American Boiler Manufacturers Association by Gene E. Godley and Shannon H. Ratliff II; and for the American Crop Protection Association et al. by Herbert L. Fenster and Lawrence S. Ebner.
82Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, Theodora P. Berger, Senior Assistant Attorney General, and Susan L. Durbin and Sean B. Hecht, Deputy Attorneys General, Richard Blumenthal, Attorney General of Connecticut, Thomas J. Miller, Attorney General of Iowa, Andrew Ketterer, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Patricia Madrid, Attorney General of New Mexico, Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Daniel X. Smirlock, Deputy Solicitor General, William H. Sorrell, Attorney General of Vermont, and Christine O. Gregoire, Attorney General of Washington; for the Commonwealth of Virginia by Mark L. Earley, Attorney General, William Hurd, Solicitor General, Roger L. Chaffe, Senior Assistant Attorney General, and Stewart T. Leeth, Assistant Attorney General; for the American Institute of Certified Public Accountants et al. by Theodore B. Olson, Douglas R. Cox, and Mark A. Perry; for the Association of American Physicians & Surgeons et al. by Erik S. Jaffe; for the Clean Air Trust et al. by Christopher H. Schroeder; for the Lincoln Institute for Research and Education et al. by William J. Olson, John S. Miles, Herbert W. Titus, and Lawrence J. Straw, Jr.; for the Manufacturers Alliance/MAPI Inc. et al. by David Schoenbrod and Marci A. Hamilton; for the United States Public Interest Research Group Education Fund by James Keith Weeks and David M. Driesen; and for Senator James H. Inhofe et al. by Paul Rosenzweig.
83Briefs of amici curiae were filed for the AEI-Brookings Joint Center for Regulatory Studies et al.by Robert E. Litan; for Alcan Aluminum Corp. by Lawrence A. Salibra II; for Environmental Defense et al.by Richard L. Revesz and Ann Brewster Weeks; for General Electric Co. by Laurence H. Tribe, Jonathan S. Massey, Thomas C. Goldstein, Benjamin W. Heineman, Jr., Brackett B. Denniston III, and Matthew Tanzer; for the Institute for Justice et al. by William H. Mellor, Clint Bolick, Deborah Simpson, Timothy Lynch, and Ronald D. Rotunda; for Intel Corp. et al. by Richard P. Bress, Claudia M. O'Brien, and Gregory S. Slater; for the Mercatus Center by Ernest Gelhorn and Ann G. Weymouth; for the Pacific Legal Foundation et al. by M. Reed Hopper; for People for the U. S. A.et al.by Christopher C. Horner; for the Washington Legal Foundation et al.by Paul D. Clement, Jeffrey S. Bucholtz, Daniel J. Popeo, and Paul D. Kamenar; for Senator Orrin Hatch et al. by Carter G. Phillips, Alan Charles Raul, Stephen B. Kinnaird, Lloyd N. Cutler, and C. Boyden Gray; and for Gary E. Marchant et al. by Cary Coglianese.
84[3] None of the sections of the CAA in which the District of Columbia Circuit has found authority for the EPA to consider costs shares § 109(b)(1)'s prominence in the overall statutory scheme. See, e. g., Michigan v. EPA, 213 F. 3d 663, 678-679 (CADC 2000); George E. Warren Corp. v. EPA, 159 F. 3d 616, 623-624 (CADC 1998); Natural Resources Defense Council, Inc. v. EPA, 824 F. 2d 1146, 1154-1163 (CADC 1987) (en banc).
85[4] Respondents contend that this advice is required to be included in the NAAQS rulemaking record—which, if true, would suggest that it was relevant to the standard-setting process. But the provision respondents cite for their contention, 42 U. S. C. § 7607(d)(3), requires only that "pertinent findings, recommendations, and comments by the Scientific Review Committee" be included. The Committee's advice concerning certain aspects of "adverse public health . . . effects" from various attainment strategies is unquestionably pertinent; but to say that Committeegenerated cost data are pertinent is to beg the question. Likewise, while "all written comments" must be placed in the docket, § 7607(d)(4)(B)(i), the EPA need respond only to the "significant" ones, § 7407(d)(6)(B); comments regarding cost data are not significant if cost data are irrelevant.
86[5] Respondents scarcely mention in their arguments the secondary NAAQS required by § 109(b)(2), 42 U. S. C. § 7409(b)(2). For many of the same reasons described in the body of the opinion, as well as the text of § 109(b)(2), which instructs the EPA to set the standards at a level "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air " (emphasis added), we conclude that the EPA may not consider implementation costs in setting the secondary NAAQS.
87[6] Respondents' speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS, because the Administrator had not followed the law. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984); Atlantic Mut. Ins. Co. v. Commissioner, 523 U. S. 382, 387 (1998). It would not, however, be grounds for this Court's changing the law.
88[7] TABLE 1 Primary standard Area class Design value* attainment date** Marginal 0.121 up to 0.138 3 years after November 15, 1990 Moderate 0.138 up to 0.160 6 years after November 15, 1990 Serious 0.160 up to 0.180 9 years after November 15, 1990 Severe 0.180 up to 0.280 15 years after November 15, 1990 Extreme 0.280 and above 20 years after November 15, 1990 *The design value is measured in parts per million (ppm). **The primary standard attainment date is measured from November 15, 1990.
448 U.S. 607 (1980)
2No. 78-911.
Supreme Court of United States.
Argued October 10, 1979.
Decided July 2, 1980.[1]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
5[610] George H. Cohen argued the cause for petitioner in No. 78-911. With him on the briefs were Robert M. Weinberg, J. Albert Woll, Laurence Gold, Elliot Bredhoff, and George Kaufmann. William Alsup argued the cause for petitioner in No. 78-1036. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Easterbrook, Benjamin W. Mintz, and Dennis K. Kade.
6Edward W. Warren argued the cause for respondents American Petroleum Institute et al. in both cases. With him on the brief were Stark Ritchie, Martha Beauchamp, Neil J. King, [611] John H. Pickering, Robert R. Bonczek, John F. Dickey, Robert L. Ackerly, and Harold B. Scoggins, Jr. Charles F. Lettow argued the cause for respondents Rubber Manufacturers Association, Inc., et al. in both cases. With him on the brief was John C. Murphy, Jr.[2]
7The Occupational Safety and Health Act of 1970 (Act), 84 Stat. 1590, 28 U. S. C. § 651 et seq., was enacted for the purpose of ensuring safe and healthful working conditions for every working man and woman in the Nation. This litigation concerns a standard promulgated by the Secretary of Labor to regulate occupational exposure to benzene, a substance which has been shown to cause cancer at high exposure levels. The principal question is whether such a showing is a sufficient basis for a standard that places the most stringent limitation on exposure to benzene that is technologically and economically possible.
9The Act delegates broad authority to the Secretary to promulgate different kinds of standards. The basic definition [612] of an "occupational safety and health standard" is found in § 3 (8), which provides:
1011"The term `occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 84 Stat. 1591, 28 U. S. C. § 652 (8).
Where toxic materials or harmful physical agents are concerned, a standard must also comply with § 6 (b) (5), which provides:
1213"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws." 84 Stat. 1594, 28 U. S. C. § 655 (b) (5).[3]
[613] Wherever the toxic material to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined and that § 6 (b) (5) requires him to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. In this case, after having determined that there is a casual connection between benzene and leukemia (a cancer of the white blood cells), the Secretary set an exposure limit on airborne concentrations of benzene of one part benzene per million parts of air (1 ppm), regulated dermal and eye contact with solutions containing benzene, and imposed complex monitoring and medical testing requirements on employers whose workplaces contain 0.5 ppm or more of benzene. 29 CFR §§ 1910.1028 (c), (e) (1979).
14On pre-enforcement review pursuant to 29 U. S. C. § 655 (f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid. American Petroleum Institute v. OSHA, 581 F. 2d 493 (1978). The court concluded that the Occupational Safety and Health Administration (OSHA)[4] had exceeded its standard-setting authority because it had not shown that the new benzene exposure limit was "reasonably necessary or appropriate to provide safe or healthful employment" as required by § 3 (8),[5] and because § 6 (b) (5) [614] does "not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of costs."[6] Reading the two provisions together, the Fifth Circuit held that the Secretary was under a duty to determine whether the benefits expected from the new standard bore a reasonable relationship to the costs that it imposed. Id., at 503. The court noted that OSHA had made an estimate of the costs of compliance, but the record lacked substantial evidence of any discernible benefits.[7]
15We agree with the Fifth Circuit's holding that § 3 (8) requires the Secretary to find, as a threshold matter, that the [615] toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Unless and until such a finding is made, it is not necessary to address the further question whether the Court of Appeals correctly held that there must be a reasonable correlation between costs and benefits, or whether, as the federal parties argue, the Secretary is then required by § 6 (b) (5) to promulgate a standard that goes as far as technologically and economically possible to eliminate the risk.
16Because these are unusually important cases of first impression, we have reviewed the record with special care. In this opinion, we (1) describe the benzene standard, (2) analyze the Agency's rationale for imposing a 1 ppm exposure limit, (3) discuss the controlling legal issues, and (4) comment briefly on the dermal contact limitation.
17Benzene is a familiar and important commodity. It is a colorless, aromatic liquid that evaporates rapidly under ordinary atmospheric conditions. Approximately 11 billion pounds of benzene were produced in the United States in 1976. Ninety-four percent of that total was produced by the petroleum and petrochemical industries, with the remainder produced by the steel industry as a byproduct of coking operations. Benzene is used in manufacturing a variety of products including motor fuels (which may contain as much as 2% benzene), solvents, detergents, pesticides, and other organic chemicals. 43 Fed. Reg. 5918 (1978).
19The entire population of the United States is exposed to small quantities of benzene, ranging from a few parts per billion to 0.5 ppm, in the ambient air. Tr. 1029-1032. Over one million workers are subject to additional low-level exposures as a consequence of their employment. The majority of these employees-work in gasoline service stations, benzene [616] production (petroleum refineries-and coking operations), chemical processing, benzene transportation, rubber manufacturing, and laboratory operations.[8]
20Benzene is a toxic substance. Although it could conceivably cause harm to a person who swallowed or touched it, the principal risk harm comes from inhalation of benzene vapors. When these vapors are inhaled, the benzene diffuses through the lungs and is quickly absorbed into the blood. [617] Exposure to high concentrations produces an almost immediate effect on the central nervous system. Inhalation of concentrations of 20,000 ppm can be fatal within minutes; exposures in the range of 250 to 500 ppm can cause vertigo, nausea, and other symptoms of mild poisoning. 43 Fed. Reg. 5921 (1978). Persistent exposures at levels above 25-40 ppm may lead to blood deficiencies and diseases of the blood-forming organs, including aplastic anemia, which is generally fatal.
21Industrial health experts have long been aware that exposure to benzene may lead to various types of nonmalignant diseases. By 1948 the evidence connecting high levels of benzene to serious blood disorders had become so strong that the Commonwealth of Massachusetts imposed a 35 ppm limitation on workplaces within its jurisdiction. In 1969 the American national Standards Institute (ANSI) adopted a national consensus standard of 10 ppm averaged over an 8-hour period with a ceiling concentration of 25 ppm for 10-minute periods or a maximum peak concentration of 50 ppm. Id., at 5919. In 1971, after the Occupational Safety and Health Act was passed, the Secretary adopted this consensus standard as the federal standard, pursuant to 29 U. S. C. § 655 (a).[9]
22[618] As early as 1928, some health experts theorized that there might also be a connection between benzene in the workplace and leukemia.[10] In the late 1960's and early 1970's a number of epidemiological studies were published indicating that workers exposed to high concentrations of benzene were subject to a significantly increased risk of leukemia.[11] In a 1974 report recommending a permanent standard for benzene, the National Institute for Occupational Safety and Health [619] (NIOSH), OSHA's research arm,[12] noted that these studies raised the "distinct possibility" that benzene caused leukemia. But, in light of the fact that all known cases had occurred at very high exposure levels, NIOSH declined to recommend a change in the 10 ppm standard, which it considered sufficient to protect against nonmalignant diseases. NIOSH suggested that further studies were necessary to determine conclusively whether there was a link between benzene and leukemia and, if so, what exposure levels were dangerous.[13]
23Between 1974 and 1976 additional studies were published which tended to confirm the view that benzene can cause leukemia, at least when exposure levels are high.[14] In an [620] August 1976 revision of its earlier recommendation, NIOSH stated that these studies provided "conclusive" proof of a causal connection between benzene and leukemia. 1 Record. Ex. 2-5 p. 100. Although it acknowledged that none of the intervening studies had provided the dose-response data it had found lacking two years earlier, id., at 9, NIOSH nevertheless recommended that the exposure limit be set as low as possible. As a result of this recommendation, OSHA contracted with a consulting firm to do a study on the costs to industry of complying with the 10 ppm standard then in effect or, alternatively, with whatever standard would be the lowest feasible. Tr. 505-506.
24In October 1976, NIOSH sent another memorandum to OSHA, seeking acceleration of the rulemaking process and "strongly" recommending the issuance of an emergency temporary standard pursuant to § 6 (c) of the Act, 29 U. S. C. § 655 (c),[15] for benzene and two other chemicals believed to [621] be carcinogens. NIOSH recommended that a 1 ppm exposure limit be imposed for benzene.[16] 1 Record, Ex. 2-6. Apparently because of the NIOSH recommendation, OSHA asked its consultant to determine the cost of complying with a 1 ppm standard instead of with the "minimum feasible" standard. Tr. 506-507. It also issued voluntary guidelines for benzene, recommending that exposure levels be limited to 1 ppm on an 8-hour time-weighted average basis wherever possible. 2 Record, Ex. 2-44.
25In the spring of 1976, NIOSH had selected two Pliofilm plants in St. Marys and Akron, Ohio, for an epidemiological study of the link between leukemia and benzene exposure. In April 1977, NIOSH forwarded an interim report to OSHA indicating at least a fivefold increase in the expected incidence of leukemia for workers who had been exposed to benzene [622] at the two plants from 1940 to 1949.[17] The report submitted to OSHA erroneously suggested that exposures in the two plants had generally been between zero and 15 ppm during the period in question.[18] As a result of this new evidence [623] and the continued prodding of NIOSH, 1 Record, Ex. 2-7, OSHA did issue an emergency standard, effective May 21, 1977, reducing the benzene exposure limit from 10 ppm to 1 ppm, the ceiling for exposures of up to 10 minutes from 25 ppm, and eliminating the authority for peak concentrations of 50 ppm. 42 Fed. Reg. 22516 (1977). In its explanation accompanying the emergency standard, OSHA stated that benzene had been shown to cause leukemia at exposures below 25 ppm and that, in light of its consultant's report, it was feasible to reduce the exposure limit to 1 ppm. Id., at 22517, 22521.
26On May 19, 1977, the Court of Appeals for the Fifth Circuit entered a temporary restraining order preventing the emergency standard from taking effect. Thereafter, OSHA abandoned its efforts to make the emergency standard effective and instead issued a proposal for a permanent standard patterned almost entirely after the aborted emergency standard Id., at 27452.
27In its published statement giving notice of the proposed permanent standard, OSHA did not ask for comments as to whether or not benzene presented a significant health risk at exposures of 10 ppm or less. Rather, it asked for comments as to whether 1 ppm was the minimum feasible exposure limit.[19] Ibid. As OSHA's Deputy Director of Health Standards, Grover Wrenn, testified at the hearing, this formulation [624] of the issue to be considered by the Agency was consistent with OSHA's general policy with respect to carcinogens.[20] Whenever a carcinogen is involved, OSHA will presume that no safe level of exposure exists in the absence of clear proof establishing such a level and will accordingly set the exposure limit at the lowest level feasible.[21] The proposed 1 ppm exposure [625] limit in this case thus was established not on the basis of a proven hazard at 10 ppm. but rather on the basis of "OSHA'S best judgment at the time of the proposal of the feasibility of compliance with the proposed standard by the [a]ffected industries." Tr. 30. Given OSHA's cancer policy, it was in face irrelevant whether there was any evidence at all of a leukemia risk at 10 ppm. The important point was that there was no evidence that there was not some risk, however small, at the level. The fact that OSHA did not ask for comments on whether there was a safe level of exposure for benzene was indicative of its further view that a demonstration of such absolute safety simply could not be made.[22]
28Public hearings were held on the proposed standard, commencing on July 19, 1977. The final standard was issued on February 10, 1978. 29 CFR § 1910.1028 (1979).[23] In its final form, the benzene standard is designed to protect workers from whatever hazards are associated with low-level benzene [626] exposures by requiring to monitor workplaces to determine the level of exposure, to provide medical examinations when the level rises above 0.5 ppm. and to institute whatever engineering or other controls are necessary to keep exposures at or below 1 ppm.
29In the standard as originally proposed by OSHA, the employer's duty to monitor, keep records, and provide medical examinations arose whenever any benzene was present in a workplace covered by the rule.[24] Because benzene is omni-present in small quantities, NIOSH and the President's Council on Wage and Price Stability recommended the use of an "action level" to trigger monitoring and medical examination requirements. Tr. 1030-1032; App. 121-133. OSHA accepted this recommendation, providing under the final standard that, if initial monitoring discloses benzene concentrations below 0.5 ppm averaged over an 8-hour work day, no further action is required unless there is a change in the company's practices.[25] If exposures are above the action [627] level, but below the 1 ppm exposure limit, employers are required to monitor exposure levels on a quarterly basis and to provide semiannual medical examinations for their exposed employees. Neither the concept of an action level, nor the specific level selected by OSHA, is challenged in this proceeding.
30Whenever initial monitoring indicates that employees are subject to airborne concentrations of benzene above 1 ppm averaged over an 8-hour workday, with a ceiling of 5 ppm for any 15-minute period, employers are required to modify their plants or institute work practice controls to reduce exposures within permissible limits. Consistent with OSHA's general policy, the regulation does not allow respirators to be used if engineering modifications are technologically feasible.[26] Employers in this category are also required to perform monthly monitoring so long as their workplaces remain above 1 ppm, provide semiannual medical examinations to exposed workers, post signs in and restrict access to "regulated areas" where the permissible exposure limit is exceeded, and conduct employee training programs where necessary.
31The standard also places strict limits on exposure to liquid [628] benzene. As originally framed, the standard totally prohibited any skin or eye contact with any liquid containing any benzene. Ultimately, after the standard was challenged, OSHA modified this prohibition by excluding liquids containing less than 0.5% benzene. After three years, that exclusion will be narrowed to liquids containing less than 0.1% benzene.
32The permanent standard is expressly inapplicable to the storage, transportation, distribution, sale, or use of gasoline or other fuels subsequent to discharge from bulk terminals.[27] This exception is particularly significant in light of the fact that over 795,000 gas station employees, who are exposed to an average of 102,700 gallons of gasoline (containing up to 2% benzene) annually, are thus excluded from the protection of the standard.[28]
33As presently formulated, the benzene standard is an expensive way of providing some additional protection for a relatively small number of employees. According to OSHA's figures, the standard will require capital investments in engineering controls of approximately $266 million, first-year operating costs (for monitoring, medical testing, employee training, and respirators) of $187 million to $205 million and [629] recurring annual costs of approximately $34 million.[29] 43 Fed. Reg. 5934 (1978). The figures outlined in OSHA's explanation of the costs of compliance to various industries indicate that only 35,000 employees would gain any benefit from the regulation in terms of a reduction in their exposure to benzene.[30] Over two-thirds of these workers (24,450) are employed in the rubber-manufacturing industry. Compliance costs in that industry are estimated to be rather low with no capital costs and initial operating expenses estimated at only $34 million ($1,390 per employee); recurring annual costs would also be rather low, totaling less than $1 million. By contrast, the segment of the petroleum refining industry that produces benzene would be required to incur $24 million in capital costs and $600,000 in first-year operating expenses to provide additional protection for 300 workers ($82,000 per employee), while the petrochemical industry would be required to incur $20.9 million in capital costs and $1 million in initial operating expenses for the benefit of 552 employees ($39,675 per employee).[31] Id., at 5936-5938.
34[630] Although OSHA did not quantify the benefits to each category of worker in terms of decreased exposure to benzene, it appears from the economic impact study done at OSHA's direction that those benefits may be relatively small. Thus, although the current exposure limit is 10 ppm, the actual exposures outlined in that study are often considerably lower. For example, for the period 1970-1975 the petrochemical industry reported that, out of a total of 496 employees exposed to benzene, only 53 were exposed to levels between 1 and 5 ppm and only 7 (all at the same plant) were exposed to between 5 and 10 ppm. 1 Economic Impact Statement, p. 4-6, Table 4-2, 11 Record, Ex. 5A, p. 4-6, Table 4-2. See also id., Tables 4.3-4.8 (indicating sample exposure levels in various industries).
35The critical issue at this point in the litigation is whether the Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit on the ground that it was not supported by appropriate findings.[32]
37[631] Any discussion of the 1 ppm exposure limit must, of course, being with the Agency's rationale for imposing that limit.[33] The written explanation of the standard fills 184 pages of the printed appendix. Much of it is devoted to a discussion of the voluminous evidence of the adverse effects of exposure to benzene at levels of concentration well above 10 ppm. This discussion demonstrates that there is ample justification for regulating occupational exposure to benzene and that the prior limit of 10 ppm, with a ceiling of 25 ppm (or a peak of 50 ppm) was reasonable. It does not, however, provide direct support for the Agency's conclusion that the limit should be reduced from 10 ppm to 1 ppm.
38The evidence in the administrative record of adverse effects of benzene exposure at 10 ppm is sketchy at best. OSHA noted that there was "no dispute" that certain nonmalignant blood disorders, evidenced by a reduction in the level of red or white cells or platelets in the blood, could result from exposures of 25-40 ppm. It then stated that several studies had indicted that relatively slight changes in normal blood values could result from exposures below 25 ppm and perhaps below 10 ppm. OSHA did not attempt to make any estimate based on these studies of how significant the risk of nonmalignant disease would be at exposures of 10 ppm of less.[34] Rather, it stated that because of the lack of data concerning the linkage between low-level exposures and blood abnormalities, it was impossible to construct a dose-response [632] curve at this time.[35] OSHA did conclude, however, that the studies demonstrated that the current 10 ppm exposure limit was inadequate to ensure that no single worker would suffer a nonmalignant blood disorder as a result of benzene exposure. Nothing that it is "customary" to set a permissible exposure limit by applying a safety factor 10-100 to the lowest level at which adverse effects had been observed, the Agency stated that the evidence supported the conclusion that the limit should be set at a point "substantially less than 10 ppm" even if benzene's leukemic effects were not considered. 43 Fed. Reg. 5924-5925 (1978). OSHA did not state, however, that the nonmalignant effects of benzene exposure justified a reduction in the permissible exposure limit to 1 ppm.[36]
39OSHA also noted some studies indicating an increase in chromosomal aberrations in workers chronically exposed to [633] concentrations of benzene probably less than 25 ppm."[37] However, the Agency took no definitive position as to what these aberrations meant in terms of demonstrable health effects and stated that no quantitative dose-response relationship had yet been established. Under these circumstances, chromosomal effects were categorized by OSHA as an "adverse biological event of serious concern which may pose or reflect a potential health risk and as such, must be considered in the larger purview of adverse health effects associated with benzene. Id., at 5932-5934.
40With respect to leukemia, evidence of an increased risk (i. e., a risk greater than that borne by the general population) due to benzene exposures at or below 10 ppm was even sketchier. Once OSHA acknowledged that the NIOSH study it had relied upon in promulgating the emergency standard did not support its earlier view that benzene had been shown to cause leukemia at concentrations below 25 ppm, see n. 12, supra, there was only one study that provided any evidence of such an increased risk. That study, conducted by the Dow Chemical Co., uncovered three leukemia deaths, versus 0.2 expected deaths, out of a population of 594 workers; it appeared that the three workers had never been exposed to more than 2 to 9 ppm of benzene. The authors of the study, however, concluded that it could not be viewed as proof of a relationship between low-level benzene exposure and leukemia because all three workers had probably been occupationally exposed to a number of other potentially carcinogenic chemicals at other points in their careers and because no leukemia deaths had been uncovered among workers who had been exposed to much higher levels of benzene. In its explanation of the permanent standard, OSHA stated that the possibility that these three leukemias had been caused by benzene exposure could not be [634] ruled out and that the study, although not evidence of an increased risk of leukemia at 10 ppm, was therefore "consistent with the findings of many studies that there is an excess leukemia risk among benzene exposed employees." 43 Fed. Reg. 5928 (1978). The Agency made to finding that the Dow study, any other empirical evidence, or any opinion testimony demonstrated that exposure to benzene at or below the 10 ppm level had ever in fact caused leukemia. See 581 F. 2d, at 503, where the Court of Appeals noted that OSHA was "unable to point to any empirical evidence documenting a leukemia risk at 10 ppm. . . ."
41In the end OSHA's rationale for lowering the permissible exposure limit to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of benzene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leukemias might result from exposure to 10 ppm and that the number of cases might be reduced by reducing the exposure level to 1 ppm. In reaching that result, the Agency first unequivocally concluded that benzene is a human carcinogen.[38] Second, it concluded that industry had failed to prove that there is a safe threshold level of exposure to benzene below which no excess leukemia cases would occur. In reaching this conclusion OSHA rejected industry contentions that certain epidemiological studies indicating no excess risk of leukemia among workers exposed at levels below 10 ppm were sufficient to establish that the threshold level of safe exposure was at or above [635] 10 ppm.[39] It also rejected an industry witness' testimony that a dose-response curve could be constructed on the basis of the reported epidemiological studies and that this curve indicated that reducing the permissible exposure limit from 10 to 1 ppm would prevent at most one leukemia and one other cancer death every six years.[40]
42Third, the Agency applied its standard policy with respect to carcinogens.[41] concluding that, in the absence of definitive [636] proof of a safe level, it must be assumed that any level above zero presents some increased risk of cancer.[42] As the federal parties point out in their brief, there are a number of scientists and public health specialists who subscribe to this view, theorizing that a susceptible person may contract cancer from the absorption of even one molecule of a carcinogen like benzene. Brief for Federal Parties 18-19.[43]
43[637] Fourth, the Agency reiterated its view of the Act, stating that it was required by § 6 (b) (5) to set the standard either at the level that has been demonstrated to be safe or at the lowest level feasible, whichever is higher. If no safe level is established, as in this case, the Secretary's interpretation of the statute automatically leads to the selection of an exposure limit that is the lowest feasible.[44] Because of benzene's importance to the economy, no one has ever suggested that it would be feasible to eliminate its use entirely, or to try to limit exposures to the small amounts that are omni-present. Rather, the Agency selected 1 ppm as a workable exposure level, see n. 14, supra, and then determined that compliance with that level was technologically feasible and that "the economic impact of . . . [compliance] will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978). It therefore held that 1 ppm was the minimum feasible exposure level within the meaning of § 6 (b) (5) of the Act.
44Finally, although the Agency did not refer in its discussion of the pertinent legal authority to any duty to identify the anticipated benefits of the new standard, it did conclude that some benefits were likely to result from reducing the exposure limit from 10 ppm to 1 ppm. This conclusion was based, again, not on evidence, but rather on the assumption that the risk of leukemia will decrease as exposure levels decrease. Although the Agency had found it impossible to construct a dose-response curve that would predict with any accuracy the [638] number of leukemias that could be expected to result from exposures at 10 ppm, at 1 ppm, or at any intermediate level, it nevertheless "determined that the benefits of the proposed standard are likely to be appreciable."[45] 43 Fed. Reg. 5941 (1978). In light of the Agency's disavowal of any ability to determine the numbers of employees likely to be adversely affected by exposures of 10 ppm, the Court of Appeals held this finding to be unsupported by the record. 581 F. 2d, at 503.[46]
45It is noteworthy that a no point in its lengthy explanation did the Agency quote or even cite § 3 (8) of the Act. It made no finding that any of the provisions of the new standard were "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Nor did it allude to the possibility that any such finding might have been appropriate.
46Our resolution of the issues in these cases turns, to a large extent, on the meaning of and the relationship between § 3 (8), which defines a health and safety standard as a standard that is "reasonably necessary and appropriate to provide safe or healthful employment," and § 6 (b) (5), which directs the Secretary in promulgating a health and safety standard for toxic materials to "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . ."
48In the Government's view, § 3 (8)'s definition of the term "standard" has no legal significance or at best merely requires that a standard not be totally irrational. It takes the position that § 6 (b) (5) is controlling and that it requires OSHA to promulgate a standard that either gives an absolute assurance of safety for each and every worker or reduces exposures to the lowest level feasible. The Government interprets "feasible" as meaning technologically achievable at a cost that would not impair the viability of the industries subject to the regulation. The respondent industry representatives, on the other hand, argue that the Court of Appeals was correct in holding that the "reasonably necessary and appropriate" language of § 3 (8), along with the feasibility requirement of § 6 (b) (5), requires the Agency to quantify both the costs and the benefits of a proposed rule and to conclude that they are roughly commensurate.
49In our view, it is not necessary to decide whether either the Government or industry is entirely correct. For we think it is clear that § 3 (8) does apply to all permanent standards promulgated under the Act and that it requires the Secretary, before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Only after the Secretary has made the threshold determination that such a risk exists [640] with respect to a toxic substance, would it be necessary to decide whether § 6 (b) (5) requires him to select the most protective standard he can consistent with economic and technological feasibility, or whether, as respondents argue, the benefits of the regulation must be commensurate with the costs of its implementation. Because the Secretary did not make the required threshold finding in these cases, we have no occasion to determine whether costs must be weighed against benefits in an appropriate case.
50Under the Government's view, § 3 (8), if it has any substantive content at all,[47] merely requires OSHA to issue standards [641] that are reasonably calculated to produce a safer or more healthy work environment. Tr. of Oral Arg. 18, 20. Apart from this minimal requirement of rationality, the Government argues that § 3 (8) imposes no limits on the Agency's power, and thus would not prevent it from requiring employers to do whatever would be "reasonably necessary" to eliminate all risks of any harm from their workplaces.[48] With respect to toxic substances and harmful physical agents, the Government takes an even more extreme position. Relying on § 6 (b) (5)'s direction to set a standard "which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity," the Government contends that the Secretary is required to impose standards that either guarantee workplaces that are free from any risk of material health impairment, however small, or that come as close as possible to doing so without ruining entire industries.
52If the purpose of the statute were to eliminate completely and with absolute certainty any risk or serious harm, we would agree that it would be proper for the Secretary to interpret §§ 3 (8) and 6 (b) (5) in this fashion. But we think it is clear that the statute was not designed to require employers to provide absolutely risk-free workplaces whenever it is technologically feasible to do so, so long as the cost is not great enough to destroy an entire industry. Rather, both the language and structure of the Act, as well as its legislative history, indicate that it was intended to require the elimination, as far as feasible, of significant risks of harm.
53By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not equivalent of "risk-free." There are many activities that we engage in every day—such as driving a car or even breathing city air—that entail some risk of accident or material health impairment; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm.
55Therefore, before he can promulgate any permanent health or safety standard, the Secretary is required to make threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices. This requirement applies to permanent standards promulgated pursuant to § 6 (b) (5), as well as to other types of permanent standards. For there is no reason why § 3 (8)'s definition of a standard should not be deemed incorporated by reference into § 6 (b) (5). The standards promulgated pursuant to § 6 (b) (5) are just one species of the genus of standards governed by the basic requirement. That section repeatedly uses the term "standard" without suggesting any exception from, or qualification of, the general definition; on the contrary, it directs the Secretary to select "the standard"—that is to say, one of various possible alternatives that satisfy the basic definition in § 3 (8)—that is most protective.[49] Moreover, requiring the [643] Secretary to make a threshold finding of significant risk is consistent with the scope of the regulatory power granted to him by § 6 (b) (5), which empowers the Secretary to promulgate standards, not for chemicals and physical agents generally, but for "toxic materials" and "harmful physical agents."[50]
56This interpretation of §§ 3 (8) and 6 (b) (5) is supported by the other provisions of the Act. Thus, for example § 6 (g) provides in part that
5758"[i]n determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries trades, [644] crafts, occupations, business, workplaces or work environments."
The Government has expressly acknowledged that this section requires the Secretary to undertake some cost-benefit analysis before he promulgates any standard, requiring the elimination of the most serious hazards first.[51] If such an analysis must precede the promulgation of any standard, it seems manifest that Congress intended, at a bare minimum, that the Secretary find a significant risk of harm and therefore a probability of significant benefits before establishing a new standard.
59Section 6 (b) (8) lends additional support to this analysis. That subsection requires that, when the Secretary substantially alters an existing consensus standard, he must explain how the new rule will "better effectuate" the purposes of the Act.[52] If this requirement was intended to be more than a meaningless formality, it must be read to impose upon the Secretary the duty to find that an existing national consensus standard is not adequate to protect workers from a continuing and significant risk of harm. Thus, in this case, the Secretary was required to find that exposures at the current permissible [645] exposure level of 10 ppm present a significant risk of harm in the workplace.
60In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government's view of §§ 3 (8) and 6 (b) (5), coupled with OSHA's cancer policy. Expert testimony that a substance is probably a human carcinogen—either because it has caused cancer in animals or because individuals have contracted cancer following extremely high exposures—would justify the conclusion that the substance poses some risk of serious harm no matter how minute the exposure and no matter how many experts testified that they regarded the risk as insignificant. That conclusion would in turn justify pervasive regulation limited only by the constrain of feasibility. In light of the fact that there are literally thousands of substances used in the workplace that have been identified as carcinogens or suspect carcinogens, the Government's theory would give OSHA power to impose enormous costs that might produce little, if any, discernible benefit.[53]
61[646] If the Government were correct in arguing that neither § 3 (8) nor § 6 (b) (5) requires that the risk from a toxic substance be quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way, the statute would make such a "sweeping delegation of legislative power" that it might be unconstitutional under the Court's reasoning in A. L. A. Schechter Poultry Crop. v. United States, 295 U. S. 495, 539, and Panama Refining Co. v. Ryan, 293 U. S. 388. A construction of the statute that avoids this kind of open-ended grant should certainly be favored.
62The legislative history also supports the conclusion that Congress was concerned, not with absolute safety, but with the elimination of significant harm. The examples of industrial hazards referred to in the Committee hearings and debates all involved situations in which the risk was unquestionably significant. For example. the Senate Committee on Labor and Public Welfare noted that byssinosis, a disabling lung disease caused by breathing cotton dust, affected as many as 30% of the workers in carding or spinning rooms in some American cotton mils and that as many as 100,000 active or retired workers were then suffering from the disease. It also noted that statistics indicated that 20,000 out of 50,000 workers who had performed insulation work were likely to die of asbestosis, lung, cancer, or mesothelyioma as a result of breathing asbestos fibers. Another example given of an occupational health hazard that would be controlled by the Act was betanaphthylamine, a "chemical so toxic that any exposure at all is likely to cause the development of bladder cancer over a period of years." S. Rep. No. 91-1282, pp. 3-4 (1970); Legislative History of the Occupational Safety and health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), pp. 143-144 (1971) (hereafter Leg. Hist.).
64Moreover, Congress specifically amended § 6 (b) (5) to make [647] it perfectly clear that it does not require the Secretary to promulgate standards that would assure an absolutely risk-free workplace. Section 6 (b) (5) of the initial Committee bill provided that
6566"[t]he Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." (Emphasis supplied.) S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242.
On the floor of the Senate, Senator Dominick questioned the wisdom of this provision, stating:
6768"How in the world are we ever going to live up to that? What are we going to do about a place in Florida where mosquitoes are getting at the employee—perish the thought that there may be mosquitoes in Florida? But there are black flies in Minnesota and Wisconsin. Are we going to say that if employees get bitten by those for the rest of their lives they will not have been done any harm at all? Probably they will not be, but do we know?" 116 Cong. Rec. 36522 (1970), Leg. Hist. 345.
He then offered an amendment deleting the entire subsection.[54] [648] After discussions with the sponsors of the Committee bill, Senator Dominick revised his amendment. Instead of deleting the first sentence of § 6 (b) (5) entirely, his new amendment limited the application of that subsection to toxic materials and harmful physical agents and changed "any" impairment of health to "material" impairment.[55] In discussing this change, Senator Dominick noted that the Committee's bill read as if a standard had to "assure that, no matter what anybody was doing, the standard would protect him for the rest of his life against any foreseeable hazard." Such an "unrealistic standard," he stated, had not been intended by the sponsors of the bill. Rather, he explained that the intention of the bill, as implemented by the amendment, was to require the Secretary
6970"to use his best efforts to promulgate the best available standards, and in so doing, . . . he should take into account that anyone working in toxic agents and physical [649] agents which might be harmful may be subjected to such conditions for the rest of his working life, so that we can get at something which might not be toxic now, if he works in it a short time, but if he works in it the rest of his life might be very dangerous; and we want to make sure that such things are taken into consideration in establishing standards." 116 Cong. Rec., at 37622-37623, Leg. Hist. 502-503.[56]
Senator Williams, one of the sponsors of the Committee bill, agreed with the interpretation, and the amendment was adopted.
71In their reply brief the federal parties argue that the Dominick amendment simply means that the Secretary is not required to eliminate threats of insignificant harm; they argue that § 6 (b) (5) still requires the Secretary to set standards that ensure that not even one employee will be subject to any risk of serious harm—no matter how small that risk may be.[57] [650] This interpretation is at odds with Congress' express recognition of the futility of trying to make all workplaces totally risk-free. Moreover, not even OSHA follows this interpretation of § 6 (b) (5) to its logical conclusion. Thus, if OSHA is correct that the only no risk level for leukemia due to benzene exposure is zero and if its interpretation of § 6 (b) (5) is correct, OSHA should have set the exposure limit as close to zero as feasible. But OSHA did not go about its task in that way. Rather, it began with a 1 ppm level, selected at least in part to ensure that employers would not be required to eliminate benzene concentrations that were little greater than the so-called "background" exposures experienced by the population at large. See n. 14 supra. Then, despite suggestions by some labor unions that it was feasible for at least some industries to reduce exposures to well below 1 ppm,[58] OSHA decided to apply the same limit to all, largely as a matter of administrative convenience. 43 Fed. Reg. 5947 (1978).
72OSHA also deviated from its own interpretation of § 6 (b) (5) in adopting an action level of 0.5 ppm below which monitoring and medical examinations are not required. In light of OSHA's cancer policy, it must have assumed that some employees would be at risk because of exposures below 0.5 ppm. These employees would thus presumably benefit from medical examinations, which might uncover any benzene-related problems. OSHA's consultant advised the Agency that it was technologically and economically feasible to require that such examinations be provided. Nevertheless, OSHA adopted an action level, largely because the insignificant benefits [651] of giving such examinations and performing the necessary monitoring did not justify the substantial cost.[59]
73OSHA's concessions to practicality in beginning with a 1 ppm exposure limit and using an action level concept simplicity adopt an interpretation of the statute as not requiring regulation of insignificant risks.[60] It is entirely consistent with this interpretation to hold that the Act also requires the Agency to limit its endeavors in the standard-setting area to eliminating significant risks of harm.
74Finally, with respect to the legislative history, it is important to note that Congress repeatedly expressed its concern about allowing the Secretary to have too much power over American industry. Thus, Congress refused to give the Secretary the power to shut down plants unilaterally because of an imminent danger, see Whirlpool Corp. v. Marshall, 445 U. S. 1, and narrowly circumscribed the Secretary's power to issue temporary emergency standards.[61] This effort by [652] Congress to limit the Secretary's power is not consistent with a view that the mere possibility that some employee some-where in the country may confront some risk of cancer is a sufficient basis for the exercise of the Secretary's power to require the expenditure of hundreds of millions of dollars to minimize that risk.
75Given the conclusion that the Act empowers the Secretary to promulgate health and safety standards only where a significant risk of harm exists, the critical issue becomes how to define and allocate the burden of proving the significance of the risk in a case such as this, where scientific knowledge is imperfect and the precise quantification of risks is therefore impossible. The Agency's position is that there is substantial evidence in the record to support its conclusion that there is no absolutely safe level for a carcinogen and that, therefore, the burden is properly on industry to prove, apparently beyond a shadow of a doubt, that there is a safe level for benzene exposure. The Agency argues that, because of the uncertainties in this area, any other approach would render it helpless, forcing it to wait for the leukemia deaths that it believes are likely to occur[62] before taking any regulatory action.
77[653] We disagree. As we read the statute, the burden was on the Agency to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Ordinarily, it is the proponent of a rule or order who has the burden of proof in administrative proceedings. See 5 U. S. C. § 556 (d). In some cases involving toxic substances, Congress has shifted the burden of proving that a particular, substance is safe onto the party opposing the proposed rule.[63] The fact that Congress did not follow this course in enacting the Occupational Safety and Health Act indicates that it intended the Agency to bear the normal burden of establishing the need for a proposed standard.
78In this case OSHA did not even attempt to carry its burden of proof. The closest it came to making a finding that benzene presented a significant risk of harm in the workplace was its statement that the benefits to be derived from lowering the permissible exposure level from 10 to 1 ppm were "likely" to be "appreciable." The Court of Appeals held that this finding was not supported by substantial evidence. Of greater importance, even it were supported by substantial evidence, such a finding would not be sufficient to satisfy the Agency's obligations under the Act.
79The inadequacy of the Agency's findings can perhaps be [654] illustrated best by its rejection of industry testimony that a dose-response curve can be formulated on the basis of current epidemiological evidence and that, even under the most conservative extrapolation theory, current exposure levels would cause at most two deaths out of a population of about 30,000 workers every six years. See n. 39, supra. In rejecting this testimony, OSHA made the following statement:
8081"In the face of the record evidence of numerous actual deaths attributable to benzene-induced leukemia and other fatal blood diseases, OSHA is unwilling to rely on the hypothesis that at most two cancers every six years would be prevented by the proposed standard. By way of example, the Infante study disclosed seven excess leukemia deaths in a population of about 600 people over a 25-year period. While the Infante study involved higher exposures then those currently encountered, the incidence rates found by Infante, together with the numerous other cases reported in the literature of benzene leukemia and other fatal blood diseases, make it difficult for OSHA to rely on the [witness'] hypothesis to assure the statutorily mandated protection of employees. In any event, due to the fact that there is no safe level of exposure to benzene and that it is impossible to precisely quantify the anticipated benefits, OSHA must select the level of exposure which is most protective of exposed employees." 43 Fed. Reg. 5941 (1978).
There are three possible interpretations of OSHA's stated reason for rejecting the witness' testimony: (1) OSHA considered it probable that a greater number of lives would be saved by lowering the standard from 10 ppm; (2) OSHA thought that saving two lives every six yeas in a work force of 30,000 persons is a significant savings that makes it reasonable and appropriate to adopt a new standard' or (3) even if the small number is not significant and even if the savings may be even smaller, the Agency nevertheless believed it had [655] a statutory duty to select the level of exposure that is most protective of the exposed employees if it is economically and technologically feasible to do so. Even if the Secretary did not intend to rely entirely on this third theory, his construction of the statute would make it proper for him to do so. Moreover, he made no express findings of fact that would support his 1 ppm standard on any less drastic theory. Under these circumstances, we can hardly agree with the Government that OSHA discharged its duty under the Act.
82Contrary to the Government's contentions, imposing a burden on the Agency of demonstrating a significant risk of harm will not strip if of its ability to regulate carcinogens, nor will it require the Agency to wait for deaths to occur before taking any action. First, the requirement that a "significant" risk be identified is not a mathematical straitjacket. It is the Agency's responsibility to determine, in the first instance, what it considers to be a "significant" risk. Some risks are plainly acceptable and others are plainly unacceptable. If, for example, the odds are one in a billion that a person will die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the other hand, if the odds are one in a thousand that regular inhalation of gasoline vapors that are 2% benzene will be fatal, a reasonable person might well consider the risk significant and take appropriate steps to decrease or eliminate it. Although the Agency has no duty to calculate the exact probability of harm, it does have an obligation to find that a significant risk is present before it can characterize a place of employment as "unsafe."[64]
83[656] Second, OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty. Although the Agency's findings must be supported by substantial evidence, 29 U. S. C. § 655 (f), § 6 (b) (5) specifically allows the Secretary to regulate on the basis of the "best available evidence." As several Courts of Appeals have held, this provision requires a reviewing court to give OSHA some leeway where its findings must be made n the frontiers of scientific knowledge. See Industrial Union Dept., AFL-CIO v. Hodgson, 162 U. S. App. D. C. 331, 340, 499 F. 2d 467, 476 (1974); Society of the Plastics Industry, Inc. v. OSHA, 509 F. 2d 1301, 1308 (CA2 1975), cert. denied, 421 U. S. 992. Thus, so long as they are supported by a body of reputable scientific thought, the Agency is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection.[65]
84Finally, the record in this case and OSHA's own rulings on other carcinogens indicate that there are a number of ways in which the Agency can make a rational judgment about the [657] relative significance of the risks associated with exposure to a particular carcinogen.[66]
85It should also be noted that, in setting a permissible exposure level in reliance on less-than-perfect methods, OSHA would have the benefit of a backstop in the form of monitoring [658] and medical testing. Thus, if OSHA properly determined that the permissible exposure limit should be set at 5 ppm, it could still require monitoring and medical testing for employees exposed to lower levels.[67] By doing so, it could keep a constant check on the validity of the assumptions made in developing the permissible exposure limit, giving it a sound evidentiary basis for decreasing the limit if it was initially set too high.[68] Moreover, in this way it could ensure that workers who were unusually susceptible to benzene could be removed from exposure before they had suffered any permanent damage.[69]
86Because our review of these cases has involved a more detailed examination of the record than is customary, it must [659] be emphasized that we have neither made any factual determinations of our own, nor have we rejected any factual findings made by the Secretary. We express no opinion on what factual findings this record might support either on the basis of empirical evidence or on the basis of expert testimony; nor do we express any opinion on the more difficult question of what factual determinations would warrant a conclusion that significant risks are present which make promulgation of a new standard reasonably necessary or appropriate. The standard must, of course, be supported by the findings actually made by the Secretary, not merely by findings that we believe he might have made.
88In this case the record makes it perfectly clear that the Secretary relied squarely on a special policy for carcinogens that imposed the burden on industry of providing the existence of a safe level of exposure, thereby avoiding the Secretary's threshold responsibility of establishing the need for more stringent standards. In so interpreting his statutory authority, the Secretary exceeded his power.
89Throughout the administrative proceedings, the dermal contact issue received relatively little attention. In its proposed rule OSHA recommended a total ban o skin and eye contact with liquid benzene on the basis of its policy that "in dealing with a carcinogen, all potential routes of exposure (i. e., inhalation, ingestion, and skin absorption) [should] be limited to the extent feasible." 43 Fed. Reg. 5948 (1978). There was little opposition to this requirement at the hearing on the proposed rule, apparently because the proposed rule also excluded from both the permissible exposure level and the dermal contact ban work operations involving liquid mixtures containing 1% (and after one year, 0.1%) or less benzene.
91In its final standard, however, OSHA eliminated the percentage exclusion for liquid benzene, on the ground that there was no predictable correlation between the percentage of benzene [660] in a liquid and the airborne exposure arising from it. See n. 22, supra. Although the extent to which liquid benzene is absorbed through the skin is concealed unknown, OSHA also refused to exempt any liquids, no matter how little benzene they contained, from the ban on dermal contact. In support of this position it stated that there was no evidence to "suggest that the absorption rate depends on the amount of benzene present in the liquid." 43 Fed. Reg. 5948-5949 (1978).
92After the permanent standard was promulgated, OSHA received a number of requests from various industries that the percentage exclusion for liquids containing small amounts of benzene be reinstated. Those concerned with airborne exposures argued that they should not be required to monitor workplaces simply because they handled petroleum-based products in which benzene is an unavoidable contaminant. Others concerned with the dermal contact ban made similar arguments. In particular, tire manufacturers argued that it was impossible for them to comply with the ban because gloves cannot be worn during certain tire-building operations in which solvents are used and solvents containing absolutely no benzene are not commercially available.
93Because of these requests, OSHA held a new series of hearings and promulgated an amendment to the rule, reinstating the percentage exclusion, but lowering it from the proposed 1% to 0.5%. The Agency did, however, provide for a 3-year grace period before the exclusion dropped to 0.1%, rather than the one year that had originally been proposed. In explaining its amendment, OSHA reiterated its policy with respect to carcinogens, stating that, because there is no absolutely safe level for any type of exposure, exposures by whatever route must be limited to the extent feasible. For airborne exposures, a zero permissible exposure limit had not been feasible. However, in most industries a ban on any dermal contact was feasible since compliance could be achieved simply by the use of protective clothing, such an impermeable [661] gloves. The Agency recognized that the dermal contact ban could present a problem for tire manufacturers, but stated that the percentage exclusion would alleviate the problem, because solvents containing 0.5% or less benzene were available in sufficient quantities. Although it noted that solvents containing 0.1% or less benzene were not then available in quantity, the Agency stated that a 3-year grace period would be sufficient to "allow time for increased production of solvents containing lower amounts of benzene and for development and evaluation of alternative methods of compliance with the standard's dermal provision." Id., at 27968-27969.
94The Court of Appeals struck down the dermal contact prohibition on two grounds. First it held that the record did not support a finding that the ban would result in quantifiable benefits in terms of a reduced leukemia risk; therefore, it was not "reasonably necessary" within the meaning of § 3 (8) of the Act. Second, the court held that the Agency's conclusion that benzene may be absorbed through the skin was not based on the best available evidence as required by § 6 (b) (5). 581 F. 2d, at 505-506. On the second ground, the court noted that the evidence on the issue of absorption of benzene through the skin was equivocal, with some studies indicating that it could be absorbed and some indicating that it could not. All of these studies were relatively old and the only expert who had testified on the issue stated that a simple test was now available to determine, with a great deal of accuracy, whether and to what extent absorption will result. In light of § 6 (b) (5), which requires the Agency to promulgate standards on the basis of the "best available evidence" and "the latest available scientific data in the field," the court held that where there is uncontradicted testimony that a simple test will resolve the issue, the Agency is required to acquire that information before "promulgating regulations which would require an established industry to change long-followed work processes that are not demonstrably unsafe." 581 F. 2d, at 508.
95[662] While the court below may have been correct in holding that, under the peculiar circumstances of this case, OSHA was required to obtain more information, there is no need for us to reach that issue. For, in order to justify a ban on dermal contact, the Agency must find that such a ban is "reasonably necessary and appropriate" to remove a significant risk of harm from such contact. The Agency did not make such a finding, but rather acted on the basis of the absolute, no-risk policy that it applies to carcinogens. Indeed, on this issue the Agency's position is even more untenable, inasmuch as it was required to assume not only that benzene in small doses is a carcinogen, but also that it can be absorbed through the skin in sufficient amounts to present a carcinogenic risk. These assumptions are not a proper substitute for the findings of a significant risk of harm required by the Act.
96The judgment of the Court of Appeals remanding the petition for review to the Secretary for further proceedings is affirmed.
97It is so ordered.
98These cases press upon the Court difficult unanswered questions on the frontiers of science and medicine. The statute and the legislative history give ambiguous signals as to how the Secretary is directed to operate in this area. The opinion by MR. JUSTICE STEVENS takes on a difficult task to decode the message of the stature as to guidelines for administrative action.
100To comply with statutory requirements, the Secretary must bear the burden of "finding" that a proposed health and safety standard is "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." This policy judgment entails the subsidiary finding that the pre-existing standard presents a "significant risk" of material health impairment for a worker who spends his entire employment life in a working environment where exposure [663] remains at maximum permissible levels. The Secretary's factual finding of "risk" must be "quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way." Ante, at 646. Precisely what this means is difficult to say. But because these mandated findings were not made by the Secretary, I agree that the 1 ppm benzene standard must be invalidated. However, I would stress the differing functions of the courts and the administrative agency with respect to such health and safety regulation.
101The Congress is the ultimate regulator, and the narrow function of the courts is to discern the meaning of the statute and the implementing regulations with the objective of ensuring that in promulgating health and safety standards the Secretary "has given reasoned consideration to each of the pertinent factors" and has complied with statutory commands. Permian Basin Area Rate Cases, 390 U. S. 747, 792 (1968). Our holding that the Secretary must retrace his steps with greater care and consideration is not to be taken in derogation of the scope of legitimate agency discretion. When the facts and arguments have been presented and duly considered, the Secretary must make a policy judgment as to whether a specific risk of health impairment is significant in terms of the policy objectives of the statute. When he acts in this capacity, pursuant to the legislative authority delegated by Congress, he exercises the prerogatives of the legislature—to focus on only one aspect of a larger problem, or to promulgate regulations that, to some, may appear as imprudent policy or inefficient allocation of resources. The judicial function does not extend to substantive revision of regulatory policy. that function lies elsewhere—in Congressional and Executive oversight or amendatory legislation—although to be sure the boundaries are often ill-defined and indistinct.
102Nevertheless, when discharging his duties under the statute, the Secretary is well admonished to remember that a heavy responsibility burdens his authority. Inherent in this statutory scheme is authority to refrain from regulation of [664] insignificant or de minimis risks. See Alabama Power Co. v. Costle, 204 U. S. App. D. C. 51, 88-89, 636 F. 2d 323, 360-361 (1979) (opinion of Leventhal, J.). When the administrative record reveals only scant or minimal risk or material health impairment, responsible administration calls for avoidance of extravagant, comprehensive regulation. Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible.
103I join Parts I, II, III-A, III-B, III-C, and III-E of the plurality opinion.[70] The Occupational Safety and Health Administration relied in large part on its "carcinogen policy"— which had not been adopted formally—in promulgating the benzene exposure and dermal contact regulation at issue in these cases.[71] For the reasons stated by the plurality. I agree that §§ 6(b) (5) and 3 (8) of the Occupational Safety and Health Act of 1970. 29 U. S. C. §§ 655 (b) (5) and 652 (8), must be read together. They required OSHA to make a threshold finding that proposed occupational health standards are reasonably necessary to provide safe workspaces. When OSHA acts to reduce existing national consensus standards, [665] therefore, it must find that (i) currently permissible exposure levels create a significant risk of material health impairment; and (ii) a reduction of those levels would significantly reduce the hazard.
105Although I would not rule out the possibility that the necessary findings could rest in part on generic policies properly adopted by OSHA, see McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions; Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 755-759 (1979), no properly supported agency policies are before us in these cases.[72] I therefore agree with the plurality that the regulation is invalid to the extent it rests upon the assumption that exposure to known carcinogens always should be reduced to a level proved to be safe or, if no such level is found, to the lowest level that the affected industry can achieve with available technology.
106If the disputed regulation were based exclusively on this "carcinogen policy." I also would agree that we need not consider whether the Act requires OSHA to determine that the benefits of a proposed standard are reasonably related to the costs of compliance. Ante, at 615. As the Court of Appeals for the Fifth Circuit recognized, however, OSHA takes the "fall-back position" that its regulation is justified by specific findings based upon the voluminous evidentially record complied in this case. American Petroleum Institute v. OSHA, 581 F. 2d 493, 503. OSHA found, for example, that the number [666] of cancers prevented by reducing permissible exposure levels from 10 ppm to 1ppm "may be appreciable," that "the benefits of the proposed standard are likely to be appreciable," and that the "substantial costs [of the new standard] are justified in light of the hazards," 43 Fed. Reg. 5940-5941 (1978). Thus, OSHA found—at least generally—that the hazards of benzene exposure at currently permissible levels are serious enough to justify an expenditure of hundreds of millions of dollars. For me, that finding necessarily subsumes the conclusion that the health risk is "significant." If OSHA's conclusion is supported by substantial evidence, the threshold requirement discussed in the plurality opinion would be satisfied.
108As I read its opinion, the plurality does not consider whether the agency's findings are supported by substantial evidence. The Court of Appeals found them insufficient because OSHA failed "to estimate the extent of expected benefits. . . ." 581 F. 2d, at 504. That court apparently would have required OSHA to supply a specific numerical estimate of benefits derived through mathematical techniques for "risk quantification" or "cost-effectiveness analysis." Id., at 504, n. 23; see Id., at 504-505. I do agree with the Court of Appeals' conclusion that the statute requires quantification of risk in every case.
109The statutory preference for the "best available evidence." 29 U. S. C. § 655 (b) (5), implies that OSHA must use the best known techniques for the accurate estimation of risks and benefits when such techniques are available. But neither the statute nor the legislative history suggests that OSHA's hands are tied when reasonable quantification cannot be accomplished by any known methods. See post, at 693 (MARSHALL, J., dissenting). In this litigation, OSHA found that "it is impossible to precisely quantify the anticipated benefits. . . ." 43 Fed. Reg. 5941 (1978). If this finding is supported by substantial evidence, the statute does not prevent the Secretary from finding a significant health hazard on the [667] basis of the weight of expert testimony and opinion. I do not understand the plurality to hold otherwise. See ante, at 662.
110For the foregoing reasons, I would not hold that "OSHA did not even attempt to carry its burden of proof" on the threshold question whether exposure to benzene at 10 ppm presents a significant risk to human health. Ante, at 653. In my view, the question is whether OSHA successfully carried its burden on the basis of record evidence. That question in turn reduces to two principal issues. First, is there substantial evidence supporting OSHA's determination that available quantification techniques are too imprecise to permit a reasonable numerical estimate of risks? If not, then OSHA has failed to show that its regulation rests on the "best available evidence." Second, is OSHA's finding of significant risks at current exposure levels supported by substantial evidence? If not, then OSHA has failed to show that the new regulation is reasonably necessary to provide safe and healthful workplaces.
111Although I regard the question as close, I do not disagree with the plurality's view that OSHA has failed, on this record, to carry its burden of proof on the threshold issues summarized above. But even if one assumes that OSHA properly met this burden, see post, at 697-701, 713-714 (MARSHALL, J., dissenting). I conclude that the statute also requires the agency t o determine that the economic effects of its standard bear a reasonable relationship to the expected benefits. An occupational health standard is neither "reasonably necessary" not "feasible," as required by statute, if ti calls for expenditures wholly disproportionate to the expected health and safety benefits.
113OSHA contends that § 6 (b) (5) not only permits but actually requires it to promulgate standards that reduce health risks without regard to economic effects, unless those effects [668] would cause widespread dislocation throughout an entire industry.[73] Under the threshold test adopted by the plurality today, this authority will exist only with respect to "significant" risks. But the plurality does not reject OSHA's claim that it must reduce such risks without considering economic consequences less serious than massive dislocation. In my view, that claim is untenable.
114Although one might wish that Congress had spoken with greater clarity, the legislative history and purposes of the statute do not support OSHA's interpretation of the Act.[74] [669] It is simply unreasonable to believe that Congress intended OSHA to pursue the desirable goal of risk-free workplaces to the extent that the economic visibility of particular industries— or significant segments thereof—is threatened. As the plurality observes. OSHA itself has not chosen to carry out such a self-defeating policy in all instances. Ante, at 650. If it did. OSHA regulations would impair the ability of American industries to compete effectively with foreign businesses and to provide employment for American workers.[75]
115I therefore would not lightly assume that Congress intended OSHA to require reduction of health risks found to be significant whenever it also finds that the affected industry [670] can bear the costs. See n. 4, supra. Perhaps more significantly. however. OSHA's interpretation of § 6 (b) (5) would force it to regulate in a manner inconsistent with the important health and safety purposes of the legislation we construe today. Thousands of toxic substances present risks that fairly could be characterized as "significant," Cf. ante, at 645, n. 51. Even if OSHA succeeded in selecting the gravest risks for earliest regulation. a standard-setting process that ignored economic considerations would result in a serious misallocation of resources and a lower effective level of safety than could be achieved under standards set with reference to the comparative benefits available at a lower cost.[76] I would not attribute such an irrational intention to Congress.
116In these cases. OSHA did find that the "substantial costs" of the benzene regulations are justified. See supra, at 665-666. But the record before us contains neither adequate documentation of this conclusion, nor any evidence that OSHA weighed the relevant considerations. The agency simply announced its finding of cost-justification without explaining the method by which it determines that the benefits justify the costs and their economic effects. No rational system of regulation can permit its administrators to make policy judgments without explaining how their decisions effectuate the purposes of the governing law, and nothing in the statute authorizes such laxity in these cases.[77] Since neither the airborne [671] concentration standard nor the dermal contact standard for exposure to benzene satisfies the requirements of the governing statute, I join the Court's judgment affirming the judgment of the Court of Appeals.
117The statutory provision at the center of the present controversy, § 6 (b) (5) of the Occupational Safety and Health Act of 1970, states, in relevant part, that the Secretary of Labor
119120". . . in promulgating standards dealing with toxic materials or harmful physical agents . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 84 Stat. 1594, 29 U. S. C. § 655 (b) (5) (emphasis added).
According to the Secretary, who is one of the petitioners herein, § 6 (b)(5) imposes upon him an absolute duty, in regulating harmful substances like benzene for which no safe level is known, to set the standard for permissible exposure at the lowest level that "can be achieved at bearable cost with available technology." Brief for Federal Parties 57. While the Secretary does not attempt to refine the concept of "bearable cost," he apparently believes that a proposed standard is economically feasible so long as its impact "will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978).
121Respondents reply, and the lower court agreed, that § 6 (b) (5) must be read in light of another provision in the [672] same Act, § 3 (8), which defines an "occupational health and safety standard" as
122123". . . a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 84 Stat. 1591, 29 U. S. C. § 652 (8).
According to respondents, § 6 (b) (5), as tempered by § 3 (8), requires the Secretary to demonstrate that any particular health standard is justifiable on the basis of a rough balancing of costs and benefits.
124In considering these alternative interpretations, my colleagues manifest a good deal of uncertainty,, and ultimately divide over whether the Secretary produced sufficient evidence that the proposed standard for benzene will result in any appreciable benefits at all. This uncertainty, I would suggest, is eminently justified, since I believe that this litigation presents the Court with what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths. I would also suggest that the widely varying positions advanced in the briefs of the parties and in the opinions of MR. JUSTICE STEVENS, THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE MARSHALL demonstrate, perhaps better than any other fact, that Congress, the governmental body best suited and most obligated to make the choice confronting us in this litigation, has improperly delegated that choice to the Secretary of Labor and, derivatively, to this Court.
125In his Second Treatise of Civil Government, published in 1690, John Locks wrote that "[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive [673] grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands."[78] Two hundred years later, this Court expressly recognized the existence of and the necessity for limits on Congress' ability to delegate its authority to representatives of the Executive Branch: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution". Field v. Clark, 143 U. S. 649, 692 (1892).[79]
127The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception. The Framers of the Constitution were practical statesmen, who saw that the doctrine of separation of power was a two-sided coin. James Madison, in Federalist Paper No.48, for example, recognized that while the division of authority among the various branches of government was a useful principle, "the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." The Federalist No. 48, p. 308 (H. Lodge ed. 1888).
128This Court also has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government [674] capable of effectively exercising the substantive powers granted to the various branches by the Constitution. Mr. Chief Justice Taft. Writing for the Court in J. W. Hampton & Co. v. United States, 276 U. S. 394 (1928), noted the practicalities of the balance that has to be struck:
129130"[T]he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional filed of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Id., at 406.
During the third and fourth decades of this century, this Court within a relatively short period of time struck down several Acts of Congress on the grounds that they exceeded the authority of Congress under the Commerce Clause or under the nondelegation principle of separation of powers, and at the same time struck down state statutes because they violated "substantive" due process or interfered with interstate commerce. See generally R. Jackson, The Struggle for Judicial Supremacy 48-123 (1949). When many of these decisions were later overruled, the principle that Congress [675] could not simply transfer its legislative authority to the Executive fell under a cloud. Yet in my opinion decisions such as Panama Refining Co. v. Ryan, 293 (1935), suffer from non of the excesses of judicial policy making that plagued some of the other decisions of that era. The many later decisions that have upheld congressional delegations of authority to the Executive Branch have done so largely on the theory that Congress may wish to exercise its authority in a particular field, but because the field is sufficiently technical, the ground to be covered sufficiently large, and the Members of Congress themselves not necessarily expert in the area in which they choose to legislate, the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, "fill in the blanks," or apply the standards to particular cases. These decisions, to may mind, simply illustrate the above-quoted principle stated more than 50 years ago by Mr. Chief Justice Taft that delegations of legislative authority must be judged "according to common sense of the inherent necessities of the governmental co-ordination".
131Viewing the legislation at issue here in light of these principle, I believe that it fails to pass muster. Read literally, the relevant portion of § 6 (b) (5) is completely precatory, admonishing the Secretary to adopt the most protective standard if he can, but excusing him from that duty if he cannot. In the case of a hazardous substance of which a "safe" level is either unknown or impractical, the language of § 6 (b) (5) gives the Secretary absolutely no indication where on the continuum of relative safety he should drawn his line. Especially in light of the importance of the interests at stake, I have no doubt that the provision at issue, standing alone, would violate the doctrine against uncanalized delegations of legislative power. For me the remaining question, then, is whether additional standards are ascertainable from the legislative history or statutory context of § 6 (b) (5) or, if not, whether [676] such a standardless delegation was justifiable in light of the "inherent necessities" of the situation.
132One of the primary sources looked to by this Court in adding gloss to an otherwise broad grant of legislative authority is the legislative history of the statute in question. The opinions of MR. JUSTICE STEVENS and MR. JUSTICE MARSHALL, however, give little more than a tip of the hat to the legislative origins of § 6 (b) (5). Such treatment is perhaps understandable, since the legislative history of that section, far from shedding light on what important policy choices Congress was making in the statute, gives one the feeling of viewing the congressional purpose "by the dawn's early light."
134The precursor of § 6 (b) (5) was placed in the Occupational Safety and Health Act of 1970 while that bill was pending in the House Committee on Education and Labor. At that time, the section read:
135136"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health, or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." § 7 (a) (4), H. R. 16785, 91st Cong., 2d Sess., 49 (1970), Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. 943 (1971) (hereinafter Leg. Hist.).
Three aspects of this original proposal are particularly significant. First, and perhaps most importantly, as originally introduced the provision contained no feasibility limitation, providing instead that the Secretary "shall set the standard which most adequately assures" that no employee will suffer [677] harm. Second, it would have required the Secretary to protect employees from "any" impairment of health or functional capacity. Third, on its face, although perhaps not in its intent, the provision applied to both health and safety standards promulgated under the Act.[80]
137There can be little doubt that, at this point in its journey thorough Congress, § 6 (b) (5) would have required the Secretary, in regulating toxic substances, to set the permissible level of exposure at a safe level or, if no safe level was known, at zero. When the Senate Committee on Labor and Public Welfare considered a provision identical in almost all respects to the House version, however, Senator Javits objected that the provision in question "might be interpreted to require absolute health and safety in all cases, regardless of feasibility. . . ." S. Rep. No. 91-1282, p. 58 (1970). Leg. Hist. 197. See also 116 Cong. Rec. 37327 (1970), Leg. Hist. 418. The Committee therefore amended the bill to provide that the Secretary "shall set the standard which most adequately and feasibly" assured that no employee would suffer any impairment of health. S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242 (emphasis added). The only additional explanation for this change appeared in the Senate Report accompanying the bill to the Senate floor. There, the Committee explained:
138139"[S]tandards promulgated under section 6 (b) shall represent feasible requirements, which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest available scientific [678] data. Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health or functional capacity or diminished life expectancy, by reason of exposure to the hazard involved, even though such exposure may be over the period of his entire working life." S. Rep. No. 91-1282, p. 7 (1970), Leg. Hist. 147 (emphasis added).
Despite Senator Javits' inclusion of the words "and feasibly" in the provision, participants in the floor debate immediately characterized § 6 (b) (5) as requiring the Secretary "to establish a utopia free from any hazards" and to "assure that there will not be any risk at all." 116 Cong. Rec. 37914 (1970). Leg. Hist. 480-481 (remarks of Sen. Dominick). Senator Saxbe stated:
140141"When we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain. . . .
"I believe the terms that we are passing back and forth are going to have to be identified." 116 Cong. Rec., at 26522, Leg. Hist. 345.
In response to these concerns, Senator Dominick introduced a substitute for the proposed provision, deleting the sentence at issue here entirely. He explained that his amendment would delete
142143"the requirement in section 6 (b) (5) that the Secretary will establish occupational safety and health standards which most adequately and feasibly assure to the extent possible that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if the employee has regular exposure to the hazard dealt with by the standard for the period of his working life.
"This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all [679] occupations in which there remains some risk of injury. impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus. the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most `adequately' and `feasibly' assure the elimination of the danger would be the prohibition of the occupation itself.
"If the provision is intended as no more than an admonition to the Secretary to do his duty, it seems unnecessary and could, if deemed advisable be included in the legislative history." (Emphasis in original.) 116 Cong. Rec., at 36530, Leg. Hist. 367.
Eventually, Senator Dominick and his supporters settled for the present language of § 6 (b) (5). This agreement resulted in three changes from the original version of the provision as amended by Senator Javits. First, the provision was altered to state explicitly that it applied only to standards for "toxic materials or harmful physical agents," in apparent contrast with safety standards. Second, the Secretary was no longer admonished to protect employees from "any" impairment of their health, but rather only from "material" impairments. Third, and most importantly for our purposes, the phrase "most adequately and feasibly assures" was revamped to read "most adequately assures, to the extent feasible."
144We have been presented with a number of different interpretations of this shift. According to the Secretary. Senator Dominick recognized that he could not delete the seemingly absolute requirements of § 6 (b) (5) entirely, and instead agreed to limit its application to toxic materials or harmful physical agents and to specify that the Secretary was only to protect employees from material impairment of their health. Significantly, the Secretary asserts that his mandate to set such standards at the safest level technologically and economically [680] achievable remained unchanged by the Dominick amendment. According to the Secretary, the change in language from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," represented only a slight shift in emphasis, perhaps suggesting "a preference for health protection over cost." App. to Brief for Federal Parties 7a. n. 2. See also Brief for Federal Parties 59.
145MR. JUSTICE MARSHALL reads this history quite differently. In his view, the version of § 6 (b) (5) that reached the Senate floor did not "clearly embod[y] the feasibility requirement" and thus was soundly criticized as being unrealistic. See post, at 693. It was only as a result of the floor amendments, which replaced "most adequately and feasibly assures" with "most adequately assures, to the extent feasible," that the Secretary clearly was authorized to reject a standard if it proved technologically or economically infeasible. See also post at 710, and 720-721, n. 34.
146Respondents cast yet a third light on these events, focusing upon a few places in the legislative history where the words "feasible" and "reasonable" were used more or less interchangeably. See S. Rep. No. 91-2193, pp. 8-10 (1969), Leg. Hist. 38-40; 115 Cong. Rec. 22517 (1969) (Sen. Javits). It is their contention that, when Congress said "feasible", it meant cost-justified. According to respondents, who agree in this regard with the Secretary, the meaning of the feasibility requirement did not change substantially between the version that left the Senate Committee on Labor and Public Welfare and the version that was ultimately adopted as part of the Act.
147To my mind, there are several lessons to be gleaned from this somewhat cryptic legislative history. First, as pointed out by Mr. JUSTICE MARSHALL, to the extent that Senator Javits, Senator Dominick, and other Members were worried about imposing upon the Secretary the impossible burden of assuring absolute safety, they did not view § 3 (8) of the Act [681] as a limitation on that duty. I therefore find it difficult to accept the conclusion of the lower court, as embellished by respondents, that § 3 (8) acts as a general check upon the Secretary's duty under § 6 (b) (5) to adopt the most protective standard feasible.
148Second, and more importantly, I believe that the legislative history demonstrates that the feasibility requirement, as employed in § 6 (b) (5), is a legislative mirage, appearing to some Members but not to others, and assuming any form desired by the be holder. I am unable to accept MR. JUSTICE MARSHALL'S argument that, by changing the phrasing of § 6 (b) (5) from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," the Senate injected into that section something that was not already there.[81] If I am correct in this regard, then the amendment introduced by Senator Javits to relieve the Secretary of the duty to create a risk-free workplace left Senator Dominick free to object to the amended provision on the same grounds. Perhaps Senator Dominick himself offered the attest description of the feasibility requirement as "no more than an admonition to the Secretary to do his duty. . . ." 116 Cong. Rec. 36530 (1970); Leg. Hist. 367.
149In sum, the legislative history contains nothing to indicate that the language "to the extent feasible" does anything other [682] than render what had been a clear, if somewhat unrealistic, standard largely, if not entirely, precatory. There is certainly nothing to indicate that these worded, as used in § 6 (b) (5), are limited to technological and economic feasibility. When Congress has wanted to limit the concept of feasibility in this fashion, it has said so, as is evidenced in a statute enacted the same week as the provision at issue here.[82] I also question whether the Secretary wants to assume the duties such an interpretation would impose upon him. In these cases, for example, the Secretary actually declined to adopt a standard lower than 1 ppm for some industries, not because it was economically or technologically infeasible, but rather because "different levels for different industries would result in serious administrative difficulties." 43 Fed. Reg. 5947 (1978). See also ante, at 650 (plurality opinion). If § 6 (b) (5) authorizes the Secretary to reject a more protective standard in the interest of administrative feasibility. I have little doubt that he could reject such standards for any reason whatsoever, including even political feasibility.
150In prior cases this Court has looked to sources other than the legislative history to breathe life into otherwise vague delegations of legislative power. In American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946), for example, this Court concluded that certain seemingly vague delegations "derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear." Here however, there is little or nothing in the [683] remaining provisions of the Occupational Safety and Health Act of provide specificity to the feasibility criterion in § 6 (b) (5). It may be true, as suggested by Mr. JUSTICE MARSHALL, that the Act as a whole expresses a distinct preference for safety over dollars. But that expression of preference, as I read it, falls far short of the proposition that the Secretary must eliminate marginal or insignificant risks of material harm right down to an industry's breaking point.
152Nor are these cases like Lichter v. United States, U. S. 742, 783 (1948), where this court upheld delegation of authority to recapture "excessive profits" in light of a pre-existing administrative practice. Here, the Secretary's approach to toxic substances like benzene could not have predated the enactment of § 6 (b) (5) itself. Moreover, there are indications that the post enactment administrative practice has been less than uniform. For Example, the Occupational Safety and Health Review Commission (OSHRC), the body charged with adjudicating citations issued by the Secretary under the Act, apparently does not agree with the definition of "feasibility," advanced in these cases by the Secretary. In Continental Can Co., 4 OSHC 1541, 1976-1977 OSHD ¶ 21,009 (1976). the Commission reasoned:
153154"Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, including life threatening hazards, is reduced." Id., at 1547, 1976-1977 OSHD, p. 25,256.
Furthermore, the record in those cases contains at least one indication that the Secretary himself was, at one time, quite uncertain what limits § 6 (b) (5) placed upon him. In announcing the proposed 1ppm standard and discussing its economic ramifications, the Secretary explained that "[w]hile the precise meaning of feasibility is not clear from the Act, it is [684] OSHA's view that the term may include the economic ramifications of requirements imposed by standards." 43 Fed. Reg. 5934 (1978). This candid and tentative statement falls far short secretary's present position that economic and technological considerations set the only limits on his duty to adopt the most protective standard. Finally, as noted earlier, the Secretary has failed to apply his present stringent view uniformly, rejecting in these cases a lower standard for some industries on the grounds of administrative convenience.
155In some cases where broad delegations of power have been examined, this Court has upheld those delegations because of the delegate's residual authority over particular subjects of regulation. In United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 307 (1936), this Court upheld a statute authorizing the president to prohibit the sale of arms to certain countries if he found that such a prohibition would "Contribute to the reestablishment of peace." This Court reasoned that, in the area of foreign affairs Congress "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." Id., at 320. Similarly, United States v. Mazurie, 419 U. S. 544 (1975), upheld a broad delegation of authority to various Indian tribes to regulate the introduction of liquor into Indian country. According to Mazurie limitations on Congress' authority to delegate legislative power are "less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter." Id., at 556-557. In the present cases, however, neither the Executive Branch in general nor the Secretary in particular enjoys any independent authority over the subject matter at issue.
156Finally, as indicated earlier, in some cases this Court has abided by a rule of necessity, upholding broad delegations of authority where it would be "unreasonable and impracticable [685] to compel Congress to prescribe detailed rule" regarding a particular policy or situation. American Power & Light Co. v. SEC, 329 U. S. at 105. See also Buttfield v. Stranahan, 192 U. S. 470, 496 (1904). But no need for such an evasive standard as "feasibility" is apparent in the present cases. In drafting § 6 (b) (5). Congress was faced with a clear, if difficult, choice between balancing statistical lives and industrial resources or authorizing the Secretary to elevate human life above all concerns save massive dislocation in an affected industry. That Congress recognized the difficulty of this choice is clear from the previously noted remark of Senator Saxbe, who stated that "[w]hen we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain." 116 Cong. Rec. 36522 (1970), Leg. Hist. 345. that Congress chose, intentionally or unintentionally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected and is capsulized in Senator Saxbe's unfulfilled promise that "the terms that we are passing back and forth are going to have to be identified." Ibid.
157As formulated and enforced by this Court, the nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. See Arizona v. California, 373 U. S. 546, 626 (1963) (Harlan, J., dissenting in part); United States v. Robel, 389 U. S. 258, 276 (1976) (BRENNAN, J., concurring in result). Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an [686] "intelligible principle" to guide the exercise of the delegated discretion. See J. W. Hampton & Co., v. United States, 276 U. S., at 409; Panama Refining Co. v. Ryan, 293 U. S., at 430. Third, and derivative of the second, the doctrine ensure that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. See Arizona v. California, supra, at 626 (Harlan, J., dissenting in part); American Power & Light Co. v. SEC, supra, at 106.
159I believe the legislation at issue here fails on all three counts. The decision whether the law of diminishing return should have any place in the regulation of toxic substances is quintessentially one of legislative policy. For Congress to pass that decision on to the Secretary in the manner it did violates, un my mind, John Locke's caveat—reflected in the cases cited earlier in this opinion—that legislatures are to make laws, not legislators. Nor, as I think the prior discussion amply demonstrates, do the provisions at issue or their legislative history provide the Secretary with any guidance that might lead him to his somewhat tentative conclusion that he must eliminate exposure to benzene as far as technologically and economically possible. Finally, I would suggest that the standard of "feasibility" renders meaningful judicial review impossible.
160We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era. If the non-delegation doctrine has fallen into the same deserted as have substantive due process and restrictive interpretations of the Commerce Clause, it is, as one writer has phrased it. "a case of death by association." J. Ely. Democracy and Distrust. A Theory of Judicial Review 133 (1980). Indeed a number of observers have suggested that this Court should once more take up its burden of ensuring that Congress does not unnecessarily delegate important choices of social policy to politically [687] unresponsive administrators.[83] Other observers, as might be imagined, have disagreed.[84]
161If we are over to reshoulder the burden of ensuring that Congress itself make the critical policy decisions, these are surely the cases in which to do it. It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge. Far from detracting from the substantive authority of Congress, a declaration the first sentence of § 6 (b) (5) of the Occupational Safety and Health Act constitutes an invalid delegation to the Secretary of Labor would preserve the authority of Congress. If Congress wishes to legislate in an area which it has not previously sought enter, it will in today's political world undoubtedly run into opposition no matter how the legislative is formulated. But that is the very essence of legislative authority under our system. It is the hard choices, and not the filling in of the blanks, which must be made by the elected representatives of the people. when fundamental policy decisions underlying important legislation about to the enacted are to be made, the buck stops with Congress and the President insofar as he exercises his constitutional role in the legislative process.
162I would invalidate the first sentence of § 6 (b) (5) of the Occupational Safety and Health Act of 1970 as it applies to [688] any toxic substance or harmful physical agent for which a safe level, that is, a level at which "no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to [that hazard] for the period of his working life." is, according to the Secretary, unknown or otherwise "infeasible." Absent further congressional action, the Secretary would then have to choose, when acting pursuant to § 6 (b) (5), between setting a safe standard or setting no standard at all.[85] Accordingly, for the reasons stated above, I concur in the judgment of the Court affirming the judgment of the Court of Appeals.
163In cases of statutory construction, this Court's authority is limited. If the statutory language and legislative intent are plain, the judicial inquiry is at an end. Under our jurisprudence, it is presumed that ill-considered or unwise legislation will be corrected through the democratic process; a court is not permitted to distort a statute's meaning in order to make it conform with the Justices' own views of sound social policy. See TVA v. Hill, 437 U. S. 153 (1978).
165Today's decision flagrantly disregards these restrictions on judicial authority. The plurality ignores the plain meaning of the Occupational Safety and Health Act of 1970 in order to bring the authority of the Secretary of Labor in line with the plurality's own views of proper regulatory policy. The unfortunate consequence is that the Federal Government's efforts to protect American workers from cancer and other crippling diseases may be substantially impaired.
166[689] The first sentence of § 6 (b) (5) of the Act provides:
167168"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U. S. C. § 655 (b) (5).
In this case the Secretary of Labor found, on the basis of substantial evidence, that (1) exposure to benzene creates a risk of cancer, chromosomal damage, and a variety of non-malignant but potentially fatal blood disorders, even at the level of 1 ppm; (2) no safe level of exposure has been shown; (3) benefits in the form of saved lives would be derived from the permanent standard; (4) the number of lives that would be saved could turn out to be either substantial or relatively small; (5) under the present state of scientific knowledge, it is impossible to calculate even in a rough way the number of lives that would be saved, at least without making assumptions that would appear absurd to much of the medical community; and (6) the standard would not materially harm the financial condition of the covered industries. The Court does not set aside any of these findings. Thus, it could not be plainer that the Secretary's decision was fully in accord with his statutory mandate "most adequately [to] assur[e] . . . that no employee will suffer material impairment of health or functional capacity. . . ."
169The plurality's conclusion to the contrary is based on its interpretation of 29 U. S. C. § 652 (8), which defines an occupational safety and health standard as one "which requires conditions . . . reasonably necessary or appropriate to provide safe or healthful employment. . . ." According to the plurality, a standard is not "reasonably necessary or appropriate" [690] unless the Secretary is able to show that it is "at least more likely than not," ante, at 653, that the risk he seeks to regulate is a "significant" one. Ibid. Nothing in the statute's language or legislative history, however, indicates that the "reasonably necessary or appropriate" language should be given this meaning. Indeed, both demonstrate that the plurality's standard bears no connection with the acts or intentions of Congress and is based only on the plurality's solicitude for the welfare of regulated industries. And the plurality uses this standard to evaluate not the agency's decision in this case, but a strawman of its own creation.
170Unlike the plurality, I do not purport to know whether the actions taken by Congress and its delegates to ensure occupational safety represent sound or unsound regulatory policy. The critical problem in cases like the ones at bar is scientific uncertainty. While science has determined that exposure to benzene at levels above 1 ppm creates a definite risk of health impairment, the magnitude of the risk cannot be quantified at the present time. The risk at issue has hardly been shown to be insignificant; indeed, future research may reveal that the risk is in fact considerable. But the existing evidence may frequently be inadequate to enable the Secretary to make the threshold finding of "significance" that the Court requires today. If so, the consequence of the plurality's approach would be to subject American workers to a continuing risk of cancer and other fatal diseases, and to render the Federal Government powerless to take protective action on their behalf. Such an approach would place the burden of medical uncertainty squarely on the shoulders of the American worker, the intended beneficiary of the Occupational Safety and Health Act. It is fortunate indeed that at least a majority of the Justices reject the view that the Secretary is prevented from taking regulatory action when the magnitude of a health risk cannot be quantified on the basis of current techniques. See ante, at 666 (POWELL, J., concurring in part [691] and concurring in judgment); see also ante, at 656, and n. 63 (plurality opinion).
171Because today's holding has no basis in the Act, and because the Court has no authority to impose its own regulatory policies on the Nation, I dissent.
172Congress enacted the Occupational Safety and Health Act as a response to what was characterized as "the grim history of our failure to heed the occupational health needs of our workers."[86] The failure of voluntary action and legislation at the state level, see S. Rep. No. 91-1282, p. 4 (1970), Leg. Hist. 144, had resulted in a "bleak" and "worsening"[87] situation in which 14,500 persons had died annually as a result of conditions in the workplace. In the four years preceding the Act's passage, more Americans were killed in the workplace than in the contemporaneous Vietnam War, S. Rep. No. 91-1283, at 2, Leg. Hist. 142. The Act was designed as "a safety bill of rights for close to 60 million workers."[88] Its stated purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U. S. C. § 651 (b). See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U. S. 442, 444-445 (1977).
174The Act is enforced primarily through two provisions. First, a "general duty" is imposed upon employers to furnish employment and places of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm. . . ." 29 U. S. C. § 654 (a) (1). Second, the Secretary of Labor is authorized to set "occupational safety [692] and health standards," defined as standards requiring "conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U. S. C. § 652 (8).
175The legislative history of the Act reveals Congress' particular concern for health hazards of "unprecedented complexity" that had resulted from chemicals whose toxic effects "are only now being discovered." S. Rep. No. 91-1282, supra, at 2, Leg. Hist. 142. "Recent scientific knowledge points to hitherto unsuspected cause-and-effect relationships between occupational exposures and many of the so-called chronic diseases—cancer, respiratory ailments, allergies, heart disease, and others." Ibid. Members of Congress made repeated references to the dangers posed by carcinogens and to the defects in our knowledge of their operation and effect.[89] One of the primary purposes of the Act was to ensure regulation of these "insidious `silent' killers."[90]
176This special concern led to the enactment of the first sentence of 29 U. S. C. § 655 (b) (5), which, as noted above, provides:
177178"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life."
This directive is designed to implement three legislative purposes. [693] First, Congress recognized that there may be substances that become dangerous only upon repeated or frequent exposure.[91] The Secretary was therefore required to provide protection even from substances that would cause material impairment only upon exposure occurring throughout an employee's working life. Second, the requirement that the Secretary act on the basis of "the best available evidence" was intended to ensure that the standard-setting process would not be destroyed by the uncertainty of scientific views. Recognizing that existing knowledge may be inadequate, Congress did not require the Secretary to wait until definitive information could be obtained. Thus "it is not intended that the Secretary be paralyzed by debate surrounding diverse medical opinions." H. R. Rep. No. 91-1291, p. 18 (1970), Leg. Hist. 848. Third, Congress' special concern for the "silent killers" was felt to justify an especially strong directive to the Secretary in the standard-setting process. 116 Cong. Rec. 37622 (1970), Leg. Hist. 502 (Sen. Dominick).
179The authority conferred by § 655 (b) (5), however, is not absolute. The subsection itself contains two primary limitations. The requirement of "material" impairment was designed to prohibit the Secretary from regulating substances that create a trivial hazard to affected employees.[92] Moreover, all standards promulgated under the subsection must be "feasible." During the floor debates Congress expressed concern that a prior version of the bill, not clearly embodying the feasibility requirement, would require the Secretary to close down whole industries in order to eliminate risks of impairment. This standard was criticized as unrealistic.[93] [694] The feasibility requirement was imposed as an affirmative limit on the standard-setting power.
180The remainder of § 655 (b) (5), applicable to all safety and health standards, requires the Secretary to base his standards "upon research, demonstrations, experiments, and such other information as may be appropriate." In setting standards, the Secretary is directed to consider "the attainment of the highest degree of health and safety protection for the employee" and also "the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws."
181The Act makes provision for judicial review of occupational safety and health standards promulgated pursuant to § 655 (b) (5). The reviewing court must uphold the Secretary's [695] determinations if they are supported by "substantial evidence in the record considered as a whole." 29 U. S. C. § 655 (f). It is to that evidence that I now turn.
182The plurality's discussion of the record in this case is both extraordinarily arrogant and extraordinarily unfair. It is arrogant because the plurality presumes to make its own factual findings with respect to a variety of disputed issues relating to carcinogen regulation. See, e. g., ante, at 656-657, and n. 64. It should not be necessary to remind the Members of this Court that they were not appointed to undertake independent review of adequately supported scientific findings made by a technically expert agency.[94] And the plurality's discussion is unfair because its characterization of the Secretary's report bears practically no resemblance to what the Secretary actually did in this case. Contrary to the plurality's suggestion, the Secretary did not rely blindly on some Draconian carcinogen "policy." See ante, at 624-625, 635-636. If he had, it would have been sufficient for him to have observed that [696] benzene is a carcinogen, a proposition that respondents do not dispute. Instead, the Secretary gathered over 50 volumes of exhibits and testimony and offered a detailed and evenhanded discussion of the relationship between exposure to benzene at all recorded exposure levels and chromosomal damage, aplastic anemia, and leukemia. In that discussion he evaluated, and took seriously, respondents' evidence of a safe exposure level. See also ante, at 666 (POWELL, J., concurring in part and in judgment).
184The hearings on the proposed standard were extensive, encompassing 17 days from July 19 through August 10, 1977. The 95 witnesses included epidemiologists, toxicologists, physicians, political economists, industry representatives, and members of the affected work force. Witnesses were subjected to exhaustive questioning by representatives from a variety of interested groups and organizations.
185Three basic positions were presented at the hearings. The first position was that the proposed 1 ppm standard was necessary because exposure to benzene would cause material impairment of the health of workers no matter how low the exposure level. Some direct evidence indicated that exposure to benzene had caused chromosomal damage, blood disorders, and leukemia at or below the 10 ppm level itself. More important, it was suggested that the recorded effects of benzene at higher levels required an inference that leukemia and other disorders would result at levels of 1 ppm and lower, especially after the prolonged exposure typical in industrial settings. Therefore, the standard should be set at the lowest feasible level, which was 1 ppm.
186The second position was that a 1 ppm exposure level would itself pose an unwarranted threat to employee health and safety and that the available evidence necessitated a significantly lower level. An exposure limit below 1 ppm, it was argued, would be feasible. There were suggestions that benzene was gradually being replaced in many of the affected [697] industries and that most companies were already operating at or below the 1 ppm level.
187The third position was that the 1971 standard should be retained. Proponents of this position suggested that evidence linking low levels of benzene exposure to leukemia was uncertain, that the current exposure limit was sufficiently safe, and that the benefits of the proposed standard would be insufficient to justify the standard's costs. In addition, there was testimony that the expenses required by the proposed standard would be prohibitive.
188The regulations announcing the permanent standard for benzene are accompanied by an extensive statement of reasons summarizing and evaluating the results of the hearings. The Secretary found that the evidence showed that exposure to benzene causes chromosomal damage, a variety of nonmalignant blood disorders, and leukemia. 43 Fed. Reg. 5921 (1978). He concluded that low concentrations imposed a hazard that was sufficiently grave to call for regulatory action under the Act.
189Evidence of deleterious effects. The Secretary referred to studies which conclusively demonstrated that benzene could damage chromosomes in blood-forming cells. Id., at 5932. There was testimony suggesting a causal relationship between chromosomal damage and leukemia, although it could not be determined whether and to what extent such damage would impair health. Id., at 5933.[95] Some studies had suggested chromosomal damage at exposure levels of 10-25 ppm and lower.[96] No quantitative dose-response curve, showing the relationship between exposure levels and incidence of chromosomal damage, could yet be established. Id., at 5933-5934. The evidence of chromosomal damage was, in the Secretary's view, a cause for "serious concern." Id., at 5933.
190The most common effect of benzene exposure was a decrease [698] in the levels of blood platelets and red and white blood cells. If sufficiently severe, the result could be pancytopenia or aplastic anemia, noncancerous but potentially fatal diseases. There was testimony that some of the nonmalignant blood disorders caused by benzene exposure could progress to, or represented, a preleukemic stage which might eventually evolve into a frank leukemia. Id., at 5922.[97]
191Considerable evidence showed an association between benzene and nonmalignant blood disorders at low exposure levels. Such an association had been established in one study in which the levels frequently ranged from zero to 25 ppm with some concentrations above 100 ppm, ibid.; in another they ranged from 5 to 30 ppm. id., at 5923. Because of the absence of adequate data, a dose-response curve showing the relationship between benzene exposure and blood disorders could not be constructed. There was considerable testimony, however, that such disorders had resulted from exposure to benzene at or near the current level of 10 ppm and lower.[98] The Secretary concluded that the current standard did not provide adequate protection. He observed that a "safety factor" of 10 to 100 was generally used to discount the level at which a causal connection had been found in existing studies.[99] Under this approach, he concluded that, quite apart from any leukemia risk, the permissible exposure limit should be set at a level considerably lower than 10 ppm.
192Finally, there was substantial evidence that exposure to benzene caused leukemia. The Secretary concluded that the evidence established that benzene was a carcinogen. A causal relationship between benzene and leukemia was first reported in France in 1897, and since that time similar results had been found in a number of countries, including Italy, Turkey, Japan, Switzerland, the Soviet Union, and the United [699] States. The latest study, undertaken by the National Institute for Occupational Safety and Health (NIOSH) in the 1970's, reported a fivefold excess over the normal incidence of leukemia among workers exposed to benzene at industrial plants in Ohio. There was testimony that this study seriously understated the risk.[100]
193The Secretary reviewed certain studies suggesting that low exposure levels of 10 ppm and more did not cause any excess incidence of leukemia. Those studies, he suggested, suffered from severe methodological defects, as their authors frankly acknowledged.[101] Finally, the Secretary discussed a study suggesting a statistically significant excess in leukemia at levels of 2 to 9 ppm. Ibid.[102] He found that, despite certain deficiencies in the study, it should be considered as consistent with other studies demonstrating an excess leukemia risk among employees exposed to benzene. Id., at 5928.
194Areas of uncertainty. The Secretary examined three areas [700] of uncertainty that had particular relevance to his decision. First, he pointed to evidence that the latency period for benzene-induced leukemia could range from 2 to over 20 years. Id., at 5930. Since lower exposure levels lead to an increase in the latency period, it would be extremely difficult to obtain evidence showing the dose-response relationship between leukemia and exposure to low levels of benzene. Because there has been no adequate monitoring in the past, it would be practically impossible to determine what the exposure levels were at a time sufficiently distant so that the latency period would have elapsed. The problem was compounded by the difficulty of conducting a suitable study. Because exposure levels approaching 10 ppm had been required only recently, direct evidence showing the relationship between leukemia and exposure levels between 1 and 10 ppm would be unavailable in the foreseeable future.
195Second, the Secretary observed that individuals have differences in their susceptibility to leukemia. Ibid. Among those exposed to benzene was a group of unknown but possibly substantial size having various "predisposing factors" whose members were especially vulnerable to the disease. Id., at 5930, 5946. The permanent standard was designed to minimize the effects of exposure for these susceptible individuals as well as for the relatively insensitive, id., at 5946, and also to facilitate early diagnosis and treatment. Id., at 5930.
196The Secretary discussed the contention that a safe level of exposure to benzene had been demonstrated. From the testimony of numerous scientists, he concluded that it had not. Id., at 5932.[103] He also found that although no dose-response curve could be plotted, id., at 5946,[104] the extent of the risk [701] would decline with the exposure level. Ibid.[105] Exposure at a level of 1 ppm would therefore be less dangerous than exposure at one of 10 ppm. The Secretary found that the existing evidence justified the conclusion that he should not "wait for answers" while employees continued to be exposed to benzene at hazardous levels.
197Finally, the Secretary responded to the argument that the permissible exposure level should be zero or lower than 1 ppm. Id., at 5947.[106] Even though many industries had already achieved the 1 ppm level, he found that a lower level would not be feasible. Ibid.
198Costs and benefits. The Secretary offered a detailed discussion of the role that economic considerations should play in his determination. He observed that standards must be "feasible," both economically and technologically. In his view the permanent standard for benzene was feasible under both tests. The economic impact would fall primarily on the more stable industries, such as petroleum refining and petrochemical production. Id., at 5934. These industries would be able readily to absorb the costs or to pass them on to consumers. None of the 20 affected industries, involving 157,000 facilities and 629,000 exposed employees, id., at 5935, would be unable to bear the required expenditures, id., at 5934. He concluded that the compliance costs were "well within the financial capability of the covered industries." Id., at 5941. An extensive survey of the national economic impact of the standard, undertaken by a private contractor, found first-year operating costs of between $187 and $205 million, recurring annual costs of $34 million, and investment in engineering controls of about $266 million.[107] Since respondents have not attacked [702] the Secretary's basic conclusions as to cost, the Secretary's extensive discussion need not be summarized here.
199Finally, the Secretary discussed the benefits to be derived from the permanent standard. During the hearings, it had been argued that the Secretary should estimate the health benefits of the proposed regulation. To do this he would be required to construct a dose-response curve showing, at least in a rough way, the number of lives that would be saved at each possible exposure level. Without some estimate of benefits, it was argued, the Secretary's decisionmaking would be defective. During the hearings an industry witness attempted to construct such a dose-response curve. Restricting himself to carcinogenic effects, he estimated that the proposed standard would save two lives every six years and suggested that this relatively minor benefit would not justify the regulation's costs.
200The Secretary rejected the hypothesis that the standard would save only two lives in six years. This estimate, he concluded, was impossible to reconcile with the evidence in the record. Ibid.[108] He determined that, because of numerous [703] uncertainties in the existing data, it was impossible to construct a dose-response curve by extrapolating from those data to lower exposure levels.[109] More generally, the Secretary [704] observed that it had not been established that there was a safe level of exposure for benzene. Since there was considerable testimony that the risk would decline with the exposure level, id., at 5940, the new standard would save lives. The number of lives saved "may be appreciable," but there was no way to make a more precise determination.[110] The question was "on the frontiers of scientific knowledge." Ibid.
201The Secretary concluded that, in light of the scientific uncertainty, he was not required to calculate benefits more precisely. Id., at 5941. In any event he gave "careful consideration" to the question of whether the admittedly substantial costs were justified in light of the hazards of benzene exposure. He concluded that those costs were "necessary" in order to promote the purposes of the Act.
202This is not a case in which the Secretary found, or respondents established, that no benefits would be derived from a permanent standard, or that the likelihood of benefits was insignificant. Nor was it shown that a quantitative estimate of benefits could be made on the basis of "the best available evidence." Instead, the Secretary concluded that benefits will result, that those benefits "may" be appreciable, but that the dose-response relationship of low levels of benzene [705] exposure and leukemia, nonmalignant blood disorders, and chromosomal damage was impossible to determine. The question presented is whether, in these circumstances, the Act permits the Secretary to take regulatory action, or whether he must allow continued exposure until more definitive information becomes available.
205As noted above, the Secretary's determinations must be upheld if supported by "substantial evidence in the record considered as a whole." 29 U. S. C. § 655 (f). This standard represents a legislative judgment that regulatory action should be subject to review more stringent than the traditional "arbitrary and capricious" standard for informal rulemaking. We have observed that the arbitrary and capricious standard itself contemplates a searching "inquiry into the facts" in order to determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 416 (1971). Careful performance of this task is especially important when Congress has imposed the comparatively more rigorous "substantial evidence" requirement. As we have emphasized, however, judicial review under the substantial evidence test is ultimately deferential. See, e. g., Richardson v. Perales, 402 U. S. 389, 401 (1971); Consolo v. Federal Maritime Comm'n, 383 U. S. 607, 618-621 (1966). The agency's decision is entitled to the traditional presumption of validity, and the court is not authorized to substitute its judgment for that of the Secretary. If the Secretary has considered the decisional factors and acted in conformance with the statute, his ultimate decision must be given a large measure of respect. Id., at 621.
206The plurality is insensitive to three factors which, in my view, make judicial review of occupational safety and health standards under the substantial evidence test particularly difficult. First, the issues often reach a high level of technical complexity. In such circumstances the courts are required to immerse themselves in matters to which they are unaccustomed [706] by training or experience. Second, the factual issues with which the Secretary must deal are frequently not subject to any definitive resolution. Often "the factual finger points, it does not conclude." Society of Plastics Industry, Inc. v. OSHA, 509 F. 2d 1301, 1308 (CA2) (Clark, J.), cert. denied, 421 U. S. 992 (1975). Causal connections and theoretical extrapolations may be uncertain. Third, when the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts. Factual determinations can at most define the risk in some statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts.
207The decision to take action in conditions of uncertainty bears little resemblance to the sort of empirically verifiable factual conclusions to which the substantial evidence test is normally applied. Such decisions were not intended to be unreviewable; they too must be scrutinized to ensure that the Secretary has acted reasonably and within the boundaries set by Congress. But a reviewing court must be mindful of the limited nature of its role. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519 (1978). It must recognize that the ultimate decision cannot be based solely on determinations of fact, and that those factual conclusions that have been reached are ones which the courts are ill-equipped to resolve on their own.
208Under this standard of review, the decision to reduce the permissible exposure level to 1 ppm was well within the Secretary's authority. The Court of Appeals upheld the Secretary's conclusions that benzene causes leukemia, blood disorders, and chromosomal damage even at low levels, that an exposure level of 10 ppm is more dangerous than one of 1 ppm, and that benefits will result from the proposed standard. It did not set aside his finding that the number of lives that would be saved was not subject to quantification. [707] Nor did it question his conclusion that the reduction was "feasible."
209In these circumstances, the Secretary's decision was reasonable and in full conformance with the statutory language requiring that he "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U. S. C. § 655 (b) (5). On this record, the Secretary could conclude that regular exposure above the 1 ppm level would pose a definite risk resulting in material impairment to some indeterminate but possibly substantial number of employees. Studies revealed hundreds of deaths attributable to benzene exposure. Expert after expert testified that no safe level of exposure had been shown and that the extent of the risk declined with the exposure level. There was some direct evidence of incidence of leukemia, nonmalignant blood disorders, and chromosomal damage at exposure levels of 10 ppm and below. Moreover, numerous experts testified that existing evidence required an inference that an exposure level above 1 ppm was hazardous. We have stated that "well-reasoned expert testimony—based on what is known and uncontradicted by empirical evidence— may in and of itself be `substantial evidence' when first-hand evidence on the question . . . is unavailable." FPC v. Florida Power & Light Co., 404 U. S. 453, 464-465 (1972). Nothing in the Act purports to prevent the Secretary from acting when definitive information as to the quantity of a standard's benefits is unavailable.[111] Where, as here, the deficiency in [708] knowledge relates to the extent of the benefits rather than their existence, I see no reason to hold that the Secretary has exceeded his statutory authority.
210The plurality avoids this conclusion through reasoning that may charitably be described as obscure. According to the plurality, the definition of occupational safety and health standards as those "reasonably necessary or appropriate to provide safe or healthful . . . working conditions" requires the Secretary to show that it is "more likely than not" that the risk he seeks to regulate is a "significant" one. Ante, at 653. The plurality does not show how this requirement can be plausibly derived from the "reasonably necessary or appropriate" clause. Indeed, the plurality's reasoning is refuted by the Act's language, structure, and legislative history, and it is foreclosed by every applicable guide to statutory construction. In short, the plurality's standard is a fabrication bearing no connection with the acts or intentions of Congress.
212At the outset, it is important to observe that "reasonably necessary or appropriate" clauses are routinely inserted in regulatory legislation, and in the past such clauses have uniformly been interpreted as general provisos that regulatory actions must bear a reasonable relation to those statutory purposes set forth in the statute's substantive provisions. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775, 796-797 (1978); Mourning v. Family Publications Service, Inc., 411 U. S. 356, 369 (1973); Thorpe [709] v. Housing Authority of City of Durham, 393 U. S. 268, 280-281 (1969). The Court has never—until today—interpreted a "reasonably necessary or appropriate" clause as having a substantive content that supersedes a specific congressional directive embodied in a provision that is focused more particularly on an agency's authority. This principle, of course, reflects the common understanding that the determination of whether regulations are "reasonably necessary" may be made only by reference to the legislative judgment reflected in the statute; it must not be based on a court's own, inevitably subjective view of what steps should be taken to promote perceived statutory goals.
213The plurality suggests that under the "reasonably necessary" clause, a workplace is not "unsafe" unless the Secretary is able to convince a reviewing court that a "significant" risk is at issue. Ante, at 642. That approach is particularly embarrassing in this case, for it is contradicted by the plain language of the Act. The plurality's interpretation renders utterly superfluous the first sentence of § 655 (b) (5), which, as noted above, requires the Secretary to set the standard "which most adequately assures . . . that no employee will suffer material impairment of health." Indeed, the plurality's interpretation reads that sentence out of the Act. By so doing, the plurality makes the test for standards regulating toxic substances and harmful physical agents substantially identical to the test for standards generally—plainly the opposite of what Congress intended. And it is an odd canon of construction that would insert in a vague and general definitional clause a threshold requirement that overcomes the specific language placed in a standard-setting provision. The most elementary principles of statutory construction demonstrate that precisely the opposite interpretation is appropriate. See, e. g., FPC v. Texaco Inc., 417 U. S. 380, 394-395 (1974); Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 488-489 (1947). In short, Congress could have provided that the Secretary may not take regulatory action until the existing [710] scientific evidence proves the risk at issue to be "significant,"[112] but it chose not to do so.
214The plurality's interpretation of the "reasonably necessary or appropriate" clause is also conclusively refuted by the legislative history. While the standard-setting provision that the plurality ignores received extensive legislative attention, the definitional clause received none at all. An earlier version of the Act, see n. 8, supra, did not embody a clear feasibility constraint and was not restricted to toxic substances or to "material" impairments. The "reasonably necessary or appropriate" clause was contained in this prior version of the bill, as it was at all relevant times. In debating this version, Members of Congress repeatedly expressed concern that it would require a risk-free universe. See, e. g., ante, at 646-649. The definitional clause was not mentioned at all, an omission that would be incomprehensible if Congress intended [711] by that clause to require the Secretary to quantify the risk he sought to regulate in order to demonstrate that it was "significant."
215The only portions of the legislative history on which the plurality relies, see ibid., have nothing to do with the "reasonably necessary or appropriate" clause from which the "threshold finding" requirement is derived. Those portions consisted of criticisms directed toward the earlier version of the statute which already contained the definitional clause. These criticisms, in turn, were met by subsequent amendments that limited application of the strict "no employee will suffer" clause to toxic substances, inserted an explicit feasibility constraint, and modified the word "impairment" by the adjective "material." It is disingenuous at best for the plurality to suggest that isolated statements in the legislative history, expressing concerns that were met by subsequent amendments not requiring any "threshold" finding, can justify reading such a requirement into a "reasonably necessary" clause that was in the Act all along.[113]
216[712] The plurality's various structural arguments are also unconvincing. The fact that a finding of "grave danger" is required for temporary standards, see ante, at 640, n. 45, hardly implies that the Secretary must show for permanent standards that it is more probable than not that the substance to be regulated poses a "significant" risk. Nor is the reference to "toxic materials," ante, at 643, in any way informative. And the priority-setting provision, ante, at 643-644, cannot plausibly be read to condition the Secretary's standard-setting authority on an ability to meet the Court's "threshold" requirement.
217The plurality ignores applicable canons of construction, apparently because it finds their existence inconvenient. But as we stated quite recently, the inquiry into statutory purposes should be "informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act." Whirlpool Corp. v. Marshall, 445 U. S. 1, 11 (1980). Can it honestly be said that the Secretary's interpretation of the Act is "unreasoned" or "unsupportable"? And as we stated in the same case, "safety legislation is to be liberally construed to effectuate the congressional purpose." Id., at 13. The plurality's disregard of these principles gives credence to the frequently voiced criticism that they are honored only when the Court finds itself in substantive agreement with the agency action at issue.
218In short, today's decision represents a usurpation of decisionmaking authority that has been exercised by and properly belongs with Congress and its authorized representatives. [713] The plurality's construction has no support in the statute's language, structure, or legislative history. The threshold finding that the plurality requires is the plurality's own invention. It bears no relationship to the acts or intentions of Congress, and it can be understood only as reflecting the personal views of the plurality as to the proper allocation of resources for safety in the American workplace.
219The plurality is obviously more interested in the consequences of its decision than in discerning the intention of Congress. But since the language and legislative history of the Act are plain, there is no need for conjecture about the effects of today's decision. "It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated." TVA v. Hill, 437 U. S., at 185. I do not pretend to know whether the test the plurality erects today is, as a matter of policy, preferable to that created by Congress and its delegates: the area is too fraught with scientific uncertainty, and too dependent on considerations of policy, for a court to be able to determine whether it is desirable to require identification of a "significant" risk before allowing an administrative agency to take regulatory action. But in light of the tenor of the plurality opinion, it is necessary to point out that the question is not one-sided, and that Congress' decision to authorize the Secretary to promulgate the regulation at issue here was a reasonable one.
221In this case the Secretary found that exposure to benzene at levels above 1 ppm posed a definite albeit unquantifiable risk of chromosomal damage, nonmalignant blood disorders, and leukemia. The existing evidence was sufficient to justify the conclusion that such a risk was presented, but it did not permit even rough quantification of that risk. Discounting for the various scientific uncertainties, the Secretary gave [714] "careful consideration to the question of whether th[e] substantial costs" of the standard "are justified in light of the hazards of exposure to benzene," and concluded that "these costs are necessary in order to effectuate the statutory purpose. . . and to adequately protect employees from the hazards of exposure to benzene." 43 Fed. Reg. 5941 (1978).
222In these circumstances it seems clear that the Secretary found a risk that is "significant" in the sense that the word is normally used. There was some direct evidence of chromosomal damage, nonmalignant blood disorders, and leukemia at exposures at or near 10 ppm and below. In addition, expert after expert testified that the recorded effects of benzene exposure at higher levels justified an inference that an exposure level above 1 ppm was dangerous. The plurality's extraordinarily searching scrutiny of this factual record reveals no basis for a conclusion that quantification is, on the basis of "the best available evidence," possible at the present time. If the Secretary decided to wait until definitive information was available, American workers would be subjected for the indefinite future to a possibly substantial risk of benzene-induced leukemia and other illnesses. It is unsurprising, at least to me, that he concluded that the statute authorized him to take regulatory action now.
223Under these circumstances, the plurality's requirement of identification of a "significant" risk will have one of two consequences. If the plurality means to require the Secretary realistically to "quantify" the risk in order to satisfy a court that it is "significant," the record shows that the plurality means to require him to do the impossible. But regulatory inaction has very significant costs of its own. The adoption of such a test would subject American workers to a continuing risk of cancer and other serious diseases; it would disable the Secretary from regulating a wide variety of carcinogens for which quantification simply cannot be undertaken at the present time.
224[715] There are encouraging signs that today's decision does not extend that far.[114] My Brother POWELL concludes that the Secretary is not prevented from taking regulatory action "when reasonable quantification cannot be accomplished by any known methods." See ante, at 666. The plurality also indicates that it would not prohibit the Secretary from promulgating safety standards when quantification of the benefits is impossible. See ante, at 656-657, and n. 63. The Court might thus allow the Secretary to attempt to make a very rough quantification of the risk imposed by a carcinogenic substance, and give considerable deference to his finding that the risk was significant. If so, the Court would permit the Secretary to promulgate precisely the same regulation involved in these cases if he had not relied on a carcinogen "policy," but undertaken a review of the evidence and the [716] expert testimony and concluded, on the basis of conservative assumptions, that the risk addressed is a significant one. Any other interpretation of the plurality's approach would allow a court to displace the agency's judgment with its own subjective conception of "significance," a duty to be performed without statutory guidance.
225The consequences of this second approach would hardly be disastrous; indeed, it differs from my own principally in its assessment of the basis for the Secretary's decision in these cases. It is objectionable, however, for three reasons. First, the requirement of identification of a "significant" risk simply has no relationship to the statute that the Court today purports to construe. Second, if the "threshold finding" requirement means only that the Secretary must find "that there is a need for such a standard," ante, at 643, n. 48, the requirement was plainly satisfied by the Secretary's express statement that the standard's costs "are necessary in order to effectuate the statutory purpose . . . and to adequately protect employees from the hazards of exposure to benzene." 43 Fed. Reg. 5941 (1978). Third, the record amply demonstrates that in light of existing scientific knowledge, no purpose would be served by requiring the Secretary to take steps to quantify the risk of exposure to benzene at low levels. Any such quantification would be based not on scientific "knowledge" as that term is normally understood, but on considerations of policy. For carcinogens like benzene, the assumptions on which a dose-response curve must be based are necessarily arbitrary. To require a quantitative showing of a "significant" risk, therefore, would either paralyze the Secretary into inaction or force him to deceive the public by acting on the basis of assumptions that must be considered too speculative to support any realistic assessment of the relevant risk. See McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 806 (1979). It is encouraging that the Court appears willing [717] not to require quantification when it is not fairly possible. See ante, at 656-657, and n. 63.
226Though it is difficult to see how a future Congress could be any more explicit on the matter than was the Congress that passed the Act in 1970, it is important to remember that today's decision is subject to legislative reversal. Congress may continue to believe that the Secretary should not be prevented from protecting American workers from cancer and other fatal diseases until scientific evidence has progressed to a point where he can convince a federal court that the risk is "significant." Today's decision is objectionable not because it is final, but because it places the burden of legislative inertia on the beneficiaries of the safety and health legislation in question in these cases. By allocating the burden in this fashion, the Court requires the American worker to return to the political arena and to win a victory that he won once before in 1970. I am unable to discern any justification for that result.
227Since the plurality's construction of the "reasonably necessary or appropriate" clause is unsupportable, I turn to a brief discussion of the other arguments that respondents offer in support of the judgment below.
229First, respondents characterize the Act as a pragmatic statute designed to balance the benefits of a safety and health regulation against its costs. Respondents observe that the statute speaks in terms of relative protection by providing that safety must be assured "so far as possible," 29 U. S. C. § 651 (b), and by stating that the "no material impairment" requirement is to be imposed only "to the extent feasible."[115] [718] Respondents contend that the term "feasible" should be read to require consideration of the economic burden of a standard, not merely its technological achievability. I do not understand the Secretary to disagree. But respondents present no argument that the expenditure required by the benzene standard is not feasible in that respect. The Secretary concluded on the basis of substantial evidence that the costs of the standard would be readily absorbed by the 20 affected industries. One need not define the feasibility requirement with precision in order to conclude that the benzene standard is "feasible" in the sense that it will not materially harm the financial condition of the regulated industries.
230Respondents suggest that the feasibility requirement should be understood not merely to refer to a standard's expense, but also to mandate a finding that the benefits of an occupational safety and health standard bear a reasonable relation [719] to its costs. I believe that the statute's language, structure, and legislative history foreclose respondents' position. In its ordinary meaning an activity is "feasible" if it is capable of achievement, not if its benefits outweigh its costs. See Webster's Third New International Dictionary 831 (1976). Moreover, respondents' interpretation would render § 655 (b) (5) internally inconsistent by reading into the term "feasible" a requirement irreconcilable with the express language authorizing the Secretary to set standards assuring that "no employee will suffer material impairment. . . ." Respondents' position would render that language merely hortatory. As noted above, no cost-benefit analysis is referred to at any point in the statute or its legislative history, an omission which cannot be deemed inadvertent in light of the explicit cost-benefit requirements inserted into other regulatory legislation.[116] Finally, the legislative history of the feasibility requirement, see n. 8, supra, demonstrates that Congress' sole concern was that standards be economically and technologically achievable. The legislative intent was to prevent the Secretary from materially harming the financial condition of regulated industries in order to eliminate risks of impairment. Congress did not intend to preclude the Secretary from taking regulatory action where, as here, no such threat to industry is posed.[117]
231[720] In order to decide these cases, however, it is not necessary to resolve the question whether the term "feasible" may contemplate some balancing of the costs and benefits of regulatory action.[118] Taking into account the uncertainties in existing knowledge, the Secretary made an express finding that the hazards of benzene exposure were sufficient to justify the regulation's costs. 43 Fed. Reg. 5941 (1978). Any requirement to balance costs and benefits cannot be read to invalidate this wholly rational conclusion. A contrary result, forcing the Secretary to wait for quantitative data that may not be available in the foreseeable future, would run directly counter to the protective purposes of the Act.[119]
232[721] Finally, respondents suggest broadly that the Secretary did not fulfill his statutory responsibility to act on the basis of "research, demonstrations, experiments," and to consider "the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws." 29 U. S. C. § 655 (b) (5). Here, they contend, the Secretary based his decision solely on "views and arguments." Brief for Respondents American Petroleum Institute et al. 52. I disagree. The Secretary compiled an extensive record composed of over 50 volumes of exhibits. Most of those exhibits are the reported results of research and demonstrations representing "the latest available scientific data." The Secretary offered a careful discussion of these data in the statement accompanying the permanent standard. His ultimate conclusions were grounded in extensive findings of fact. Where, as here, there are gaps in existing knowledge, the Secretary's decision must necessarily be based on considerations of policy as well as on empirically verifiable facts.
233In passing the Occupational Safety and Health Act of 1970, Congress was aware that it was authorizing the Secretary to regulate in areas of scientific uncertainty. But it intended to require stringent regulation even when definitive information was unavailable. In reducing the permissible level of exposure to benzene, the Secretary applied proper legal standards. His determinations are supported by substantial evidence. [722] The Secretary's decision was one, then, which the governing legislation authorized him to make.[120]
234In recent years there has been increasing recognition that the products of technological development may have harmful effects whose incidence and severity cannot be predicted with certainty. The responsibility to regulate such products has fallen to administrative agencies. Their task is not an enviable one. Frequently no clear causal link can be established between the regulated substance and the harm to be averted. Risks of harm are often uncertain, but inaction has considerable costs of its own. The agency must decide whether to take regulatory action against possibly substantial risks or to wait until more definitive information becomes available—a judgment [723] which by its very nature cannot be based solely on determinations of fact.[121]
236Those delegations, in turn, have been made on the understanding that judicial review would be available to ensure that the agency's determinations are supported by substantial evidence and that its actions do not exceed the limits set by Congress. In the Occupational Safety and Health Act, Congress expressed confidence that the courts would carry out this important responsibility. But in these cases the plurality has far exceeded its authority. The plurality's "threshold finding" requirement is nowhere to be found in the Act and is antithetical to its basic purposes. "The fundamental policy questions appropriately resolved in Congress . . . are not subject to re-examination in the federal courts under the guise of judicial review of agency action." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S., at 558 (emphasis in original). Surely this is no less true of the decision to ensure safety for the American worker than the decision to proceed with nuclear power. See ibid.
237Because the approach taken by the plurality is so plainly irreconcilable with the Court's proper institutional role, I am certain that it will not stand the test of time. In all likelihood, today's decision will come to be regarded as an extreme reaction to a regulatory scheme that, as the Members of the plurality perceived it, imposed an unduly harsh burden on regulated industries. But as the Constitution "does not enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting), so the responsibility to scrutinize federal administrative action does not authorize this Court to strike its own balance between the [724] costs and benefits of occupational safety standards. I am confident that the approach taken by the plurality today, like that in Lochner itself, will eventually be abandoned, and that the representative branches of government will once again be allowed to determine the level of safety and health protection to be accorded to the American worker.
238[1] Together with No. 78-1036, Marshall, Secretary of Labor v. American Petroleum Institute et al., also on certiorari to the same court.
239[2] Briefs of amici curiae urging reversal were filed by John A. Fillion for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; and by Richard E. Ayres for the Natural Resources Defense Council, Inc.
240Briefs of amici curiae urging affirmance were filed by Alfred V. J. Prather for Anaconda Co.; by Anthony J. Obadal and Stephen C. Yohay for the Capital Legal Foundation; and by Robert V. Zener, Stephen A. Bokat, and William L. Kovacs for the Chamber of Commerce of the United States.
241Briefs of amici curiae were filed by William J. Kilberg, Thaddeus Holt, and Lawrence Z. Lorber for ASARCO Inc.; by David B. Robinson for the Chocolate Manufacturers Association; and by James R. Richards for Joseph Cimino et al.
242[3] The second and third sentences of this section, which impose feasibility limits on the Secretary and allow him to take into account the best available evidence in developing standards, may apply to all health and safety standards. This conclusion follows if the term "subsection" used in the second sentence refers to the entire subsection 6 (b) (which sets out procedures for the adoption of all types of health and safety standards), rather than simply to the toxic materials subsection, § 6 (b) (5). While MR. JUSTICE MARSHALL, post, at 694, and respondents agree with this position, see Brief for Respondents American Petroleum Institute et. al. 39; see also Currie, OSHA, 1976 Am. Bar Found. Research J. 1107, 1137, n. 151, the Government does not, see Brief for Federal Parties 58; see also Berger & Riskin, Economic and Technological Feasibility in Regulating Toxic Substances Under the Occupational Safety and Health Act, 7 Ecology L. Q. 285, 294 (1978). There is no need for us to decide this issue in these cases.
243[4] OSHA is the administrative agency within the Department of Labor that is responsible for promulgating and enforcing standards under the Act. In this opinion, we refer to the "Secretary,' "OSHA" and the "Agency" interchangeably.
244[5] "The Act imposes on OSHA the obligation to enact only standards that are reasonably necessary or appropriate to provide safe or healthful workplaces. If a standard does not fit in this definition, it is not one that OSHA is authorized to enact." 581 F. 2d, at 502.
245[6] "Although 29 U. S. C. A. § 655 (b) (5) requires the goal of attaining the highest degree of health and safety protection for the employee, it does not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost. To the contrary, that section requires standards to be feasible, and it contains a number of pragmatic limitations in the form of specific kinds of information OSHA must consider in enacting standards dealing with toxic materials. Those include `the best available evidence,' `research, demonstrations, experiments, and such other information as may be appropriate,' `the latest available scientific data in the field,' and `experience gained under this and other health and safety laws.' Moreover, in standards dealing with toxic materials, just as with all other occupational safety and health standards, the conditions and other requirements imposed by the standard must be `reasonably necessary or appropriate to provide safe or healthful employment and places of employment.' 29 U. S. C. A. § 652 (8)." Ibid.
246[7] "The lack of substantial evidence of discernable benefits is highlighted when one considers that OSHA is unable to point to any empirical evidence documenting a leukemia risk at 10 ppm even though that has been the permissible exposure limit since 1971. OSHA's assertion that benefits from reducing the permissible exposure limit from 10 ppm to 1 ppm are likely to be appreciable, an assumption based only on inferences drawn from studies involving much higher exposure levels rather than on studies involving these levels or sound statistical projections from the high-level studies, does not satisfy the reasonably necessary requirement limiting OSHA's action. Aqua Slide requires OSHA to estimate the extent of expected benefits in order to determine whether those benefits bear a reasonable relationship to the standard's demonstrably high costs." Id., at 503-504.
247[8] OSHA's figures indicate that 795,000 service station employees have some heightened exposure to benzene as a result of their employment. See 2 U. S. Dept. of Labor, OSHA, Technology Assessment and Economic Impact Study of an OSHA Regulation for Benzene, p. D-7 (May 1977) (hereinafter Economic Impact Statement), 11 Record, Ex. 5B, p. D-7. These employees are specifically excluded from the regulation at issue in this case. See infra, at 628. OSHA states that another 629,000 employees, who are covered by the regulation, work in the other industries described. 43 Fed. Reg. 5935 (1978).
248It is not clear from the record or its explanation of the permanent standard how OSHA arrived at the estimate of 629,000 exposed employees. OSHA's consultant, Arthur D. Little, Inc., estimated that there were 191,000 exposed employees, 30,000 of whom were exposed to 1 ppm or more of benzene. 1 Economic Impact Statement, p. 3-5, 11 Record, Ex. 5A, p. 3-5. In its explanation of the permanent standard OSHA stated that there were 1,440 exposed employees who worked in benzene plants, 98,000 in other petroleum refineries, 24,000 in coke ovens, 4,000 in light oil plants, 2,760 in the petrochemical industry, 52,345 who worked in bulk terminals, 23,471 drivers who loaded benzene from those terminals, 74,000 in oil and gas production, 17,000 in pipeline work, 100 at tank-car facilities, 200 at tank-truck facilities, 480 on barges, 11,400 in tire-manufacturing plants, and 13,050 in other types of rubber production. 43 Fed. Reg. 5936-5938 (1978). Although OSHA gave no estimate for laboratory workers, the A.D. little study indicated that there were 25,000 exposed workers in that industry. These figures add up to 347,246 exposed employees— approximately 282,000 less than the overall estimate of 629,000. It is possible that some or all of these employees work in the "other industries" briefly described in OSHA's explanation; these are primarily small firms that manufacture adhesives, paint and ink or that use benzene solvents. Id., at 5939. No estimate of the number of exposed employees in those industries or the aggregate cost of compliance by those industries is given either by OSHA or by A.D. Little in its consulting report.
249[9] Section 6 (a) of the Act, as set forth in U. S. C. § 655 (a), provides:
250251"Without regard to chapter 5 of Title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees."
In this case the Secretary complied with the directive to choose the most protective standard by selecting the ANSI standard of 10 ppm, rather than the 25 ppm standard adopted by the American Conference of Government Industrial Hygienists. 43 Fed. Reg. 5919 (1978).
252[10] See Delore & Borgomano, Leucemie aigue au cours de l'intoxication benzenique. Sur l'origine toxique de certaines leucemies aigues et leurs relations avec les anemies graves, 9 Journal de Medecine de Lyon 227 (1928). A translation of that document appears in the benzene administrative record. 2 Record, Ex. 2-60. See also Hunter, Chronic Exposure to Benzene (Benzol). II. The Clinical Effects, 21 J. Ind. Hyg. & Toxicol. 331 (1939), 3 Record, Ex. 2-74, which refers to "leucemia" as a side effect of chronic exposure to benzene.
253[11] Dr. Muzaffer Aksoy, a Turkish physician who testified at the hearing on the proposed benzene standard, did a number of studies concerning the effects of benzene exposure on Turkish shoemakers. The workers in Dr. Aksoy's studies used solvents containing large percentages of benzene and were constantly exposed to high concentrations of benzene vapors (between 150 and 650 ppm) under poorly ventilated and generally unhygienic conditions. See Aksoy, Acute Leukemia Due to Chronic Exposure to Benzene, 52 Am. J. of Medicine 160 (1972), 1 Record, Ex. 2-29; Aksoy, Benzene (Benzol): Its Toxicity and Effects on the Hematopoietic System, Istanbul Faculty of Medicine Monograph Series No.51 (1970), 2 Record, Ex.2-55; Aksoy, Erdem, & DinCol, Leukemia in Shoe-Workers Exposed Chronically to Benzene, 44 Blood 837 (1974), 2 Record, Ex.2-53 (reporting on 26 shoeworkers who had contracted leukemia from 1967 to 1973; this represented an incidence of 13 per 100,000 rather than the 6 cases per 100,000 that would normally be expected).
254Dr. Enrico Vigliani also reported an excess number of leukemia cases among Italian shoemakers exposed to glues containing a high percentage of benzene and workers in rotogravure plants who had been exposed over long periods of time to inks and solvents containing as much as 60% benzene. See Vigliani & Saita, Benzene and Leukemia, 271 New Eng. J. of Medicine 872-876 (1964), 1 Record, Ex. 2-27; Forni & Vigliani, Chemical Leukemogenesis in Man, 7 Ser. Haemat. 211 (1974), 2 Record, Ex. 2-50.
255[12] Title 29 U. S. C. § 669 (a) (3) requires the Department of Health, Education, and Welfare (HEW) (now in part the Department of Health and Human Services) to develop "criteria" dealing with toxic materials and harmful physical agents that describe "exposure levels that are safe for various periods of employment." HEW's obligations under this section have been delegated to NIOSH, 29 U. S. C.§ 671.
256[13] See Dept. of HEW, NIOSH, Criteria for a Recommended Standard— Occupational Exposure to Benzene 74-75 (Pub. No. 74-137, 1974), 1 Record, Ex. 2-3. In response to a letter from the director of the Office of Standards Division, NIOSH stated that its 10 ppm standard was designed to protect against leukemia, as well as other health risks. NIOSH noted, however, that further research was necessary in order to establish adequate dose-response data for benzene and leukemia. 12 Record, Ex. 32A, 32B.
257[14] Aksoy published another study in 1976 reporting on an additional eight leukemia cases uncovered after 1973. In that article, he also noted that a 1969 ban on the use of benzene as a solvent had led to a decline in the number of reported leukemia cases beginning in 1974. Aksoy, Types of Leukemia in Chronic Benzene Poisoning, 55 Acta Haematologica 65 (1976), 1 Record, Ex. 2-30. Vigliani also noted a decline in leukemia cases in Italy after benzene was no longer used in glues and inks. See Vigliani & Forni, Benzene and Leukemia, 11 Environmental Res. 122 (1976), 1 Record, Ex. 2-15; Vigliani, Leukemia Associated with Benzene Exposure, 271 Annals N. Y. Acad. of Sciences 143 (1976), 2 Record, Ex. 2-49. In the latter study Vigliani noted that in the past 100% pure benzene solvents had been used and workers had been exposed on a prolonged basis to concentrations of 200-500 ppm, with peaks of up to 1500 ppm.
258A number of epidemiological studies were also done among American rubber workers during this period Dr. A. J. McMichael's studies indicated a ninefold increase in the risk of contracting leukemia among workers who were heavily exposed in the 1940's and 1950's to pure benzene used as a solvent. McMichael, Spirtas, Kupper, & Gamble, Solvent Exposure and Leukemia Among Rubber Workers: An Epidemiologic Study, 17 J. of Occup. Med. 234, 238 (1975), 2 Record, Ex. 2-37. See also Andjelkovic, Taulbee, & Symons, Mortality Experience of a Cohort of Rubber Workers, 1964-1973, 18 J. of Occup. Med. 387 (1976), 2 Record, Ex. 2-54 (also indicating an excess mortality rate from leukemia among rubber workers).
259[15] Section 655 (c) provides:
260261"(1) The Secretary shall provide, without regard to the requirements of chapter 5 of title, 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employers are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such standard is necessary to protect employees from such danger.
"(2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.
"(3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection."
[16] At the hearing on the permanent standard NIOSH representatives testified that they had selected 1 ppm initially in connection with the issuance of a proposed standard for vinyl chloride. In that proceeding they had discovered that 1 ppm was approximately the lowest level detectable through the use of relatively unsophisticated monitoring instruments. With respect to benzene, they also thought that 1 ppm was an appropriate standard because any lower standard might require the elimination of the small amounts of benzene (in some places up to 0.5 ppm) that are normally present in the atmosphere. Tr. 1142-1143. NIOSH's recommendation was not based on any evaluation of the feasibility, either technological or economic, of eliminating all exposures above 1 ppm. Id., at 1156.
262[17] Seven fatalities from leukemia were discovered out of the 748 workers surveyed. However, Dr. Infante, who conducted the study, stated that his statistical techniques had probably underestimated the number of leukemia cases that had actually occurred. Id., at 747. The normal expected incidence of leukemia in such a population would be 1.4. 2 Record, Ex. 2-51, p. 6.
263[18] The authors' statement with respect to exposure levels was based on a 1946 report by the Ohio Industrial Commission indicating that, after some new ventilation equipment had been installed, exposures at the St. Marys plant had been brought within "safe" limits, in most instances ranging from zero to 10 to 15 ppm. Id., at 3. As the authors later admitted the level considered "safe" in 1946 was 100 ppm. Tr. 814-815. Moreover, only one of the seven workers who died of leukemia had begun working at St. Marys after 1946. Five of the others had worked at the Akron plant, which employed 310 of the 748 workers surveyed. Id., at 2537-2538. A 1948 report by the Ohio Department of health indicated exposure levels at the Akron plant of well over 100 ppm, with excursions in some areas up to 1,000 ppm. 17 Record, Ex. 84A, App. A, pp. 61-62. Surveys taken in the intervening years, as well as testimony by St. Marys employees at the hearing on the proposed standard, Tr. 3432-3437, indicated that both of the plants may have had relatively high exposures through the 1970's.
264Industry representatives argued at the hearing that this evidence indicated that the exposure levels had been very high, as they had been in the other epidemiological studies conducted in the past. See Post-Hearing Brief for American Petroleum Institute in No. H-059 (OSHRC), pp. 23-37, 31 Record, Ex. 217-33, pp. 23-37. NIOSH witnesses, however, simply stated that actual exposure levels for the years in question could not be determined; they did agree, however, that their study should not be taken as proof of a fivefold increase in leukemia risk at 10-15 ppm. Tr, 814-815. In its explanation of the permanent standard, OSHA agreed with the NIOSH witness that no dose-response relationship could be inferred from the study:
265"Comments at the hearing demonstrated that there were area exposures during this study period exceeding these levels [10-15 ppm], at times reaching values of hundreds of parts per million. Since no personal monitoring data are available, any conclusion regarding the actual individual time-weighted average exposure is speculative. Because of the lack of definitive exposure data, OSHA cannot derive any conclusions linking the excess leukemia risk observed with any specific exposure level." 43 Fed. Reg. 5927 (1978).
266[19] OSHA also sought public comment as to whether certain industries should be exempt from compliance, whether the proposed compliance procedures and labeling techniques were adequate, what the environmental and economic consequences of the regulation would be, and whether it was feasible to replace benzene in solvents and other products of which it constituted more than 1%.
267[20] It became clear at the hearing that OSHA had not promulgated the proposed standard in response to any new concern about the nonmalignant effects of low-level benzene exposure. See Tr. 126-127:
268269"Is it accurate to say that the reason why the—why OSHA has proposed to reduce the exposure limits in the standard below the current levels is because of a perceived risk of leukemia, and not because of any new evidence it has received that the current standards are inadequate to protect against acute or chronic benzene toxicity, other than leukemia?
"MR. WRENN: I think I will simply refer the part of my statement you were referring to, in which it says, it is however benzene's leukemogenicity which is of greatest concern to OSHA. That is certainly the central issue within the ETS [emergency temporary standard] and the proposed standard."
[21] Mr. Wrenn testified:
270271"The proposed standard requires that employee exposure to benzene in air be reduced to one part per million, with a five part per million ceiling allowable over any fifteen minute during an eight hour work shift, and prohibits eye or prolonged skin contact with liquid benzene.
"This airborne exposure limit is based on OSHA's established regulatory policy, that in the absence of a demonstrated safe level, or a no effect level for a carcinogen, it will be assumed that none exist, and that the agency will attempt to limit employee exposure to the lowest level feasible." Id., at 29-30.
See also:
272273"MR. WARREN: Mr. Wrenn, in promulgating the emergency temporary, and proposed permanent, benzene standards, OSHA heavily, and I am quoting from your testimony now, on the regulatory policy that there is no safe level for carcinogens at any—for any exposed population, and the fact that leukemia, and a leukemogen is a carcinogen, is that correct?
"MR. WRENN: I believe that I stated that slightly differently in any oral summary of the statement than it is stated in the statement itself. I said that in the absence of a known or demonstrated safe level or no effect level, our policy is to assume that none exists, and to regulate accordingly." Id., at 48-49.
"MR. WRENN: I would prefer to state it as I have on a couple of occasions already this morning, and that in the absence of a demonstrated safe level of exposure, we will assume that none exists for the purpose of regulatory policy." Id., at 50.
[22] In answer to the question of what demonstration would suffice to establish a "safe level," Mr. Wrenn stated:
274275"I would like to draw a distinction, however, between what I have referred to as the demonstration that a safe level exists, and speculation or elaborate theories that one may make, and I think that the agency in its history and very likely its future regulatory policy, would, in the face of evidence demonstrating that a carcinogenic hazard does exit or did exist, in this particular set of circumstances, would be very reluctant to accept as the basis for its regulatory decisions, a theoretical argument that a safe level may, in fact, exist for a particular substance." Id., at 51-52.
A NIOSH representative who testified later put it more succinctly, stating that ". . . if benzene causes leukemia, and if leukemia is a cancer, then exposure really is also moot." Id., at 1007.
276[23] An amendment to the standard was promulgated on June 27, 1978. 43 Fed. Reg. 27962. See n. 22, infra.
277[24] Apart from its exclusion of gasoline storage and distribution facilities (an exclusion retained in the final rule, see text, at n. 25, infra), the proposed rule also excluded from coverage work operations in which liquid mixtures containing 1% or less benzene were used. After a year this exclusion was to be narrowed to operations where 0.1% benzene solutions were used. The rationale for the exclusion was that airborne exposures from such liquids would generally be within the 1 ppm limit. However, testimony at the hearing on the proposed rule indicated that there was no "consistent predictable relationship" between benzene content in a liquid and the resulting airborne exposure. Therefore, OSHA abandoned the idea of a percentage exclusion for liquid benzene in its final standard. 43 Fed. Reg. 5942 (1978).
278OSHA later reconsidered its position and, in an amendment to the permanent standard, reinstated an exclusion for liquids, setting the level at 0.5%, to-be reduced to 0.1% after three, years, id., at 27962.
279[25] The exemption from the monitoring and medical testing portion of the standard for workplaces with benzene exposure levels below 0.5 ppm was not predicated on any finding that regulation of such workplaces was not feasible. OSHA's consultant, Arthur D. Little Inc., concluded that 1 ppm was a feasible exposure limit even assuming that there was no action level (or, to put it another way, assuming that the action level was zero). Rather, it was, as NIOSH witness stated, a practical decision based on a determination that, where benzene exposures are below 0.5 ppm, they will be unlikely ever to rise above the permissible exposure level of 1 ppm. NIOSH was also concerned that, in the absence of an action level, employers who used sophisticated analytical equipment might be required to monitor and provide medical examinations simply because of the presence of benzene in the ambient air. Tr. 1030-1032, 1133-1134.
280[26] Indeed, in its explanation of the standard OSHA states that an employer is required to institute engineering controls (for example, installing new ventilation hoods) even if those controls are insufficient, by themselves, to achieve compliance and respirators must therefore be used as well. 43 Fed. Reg. 5952 (1978). OSHA's preference for engineering modifications is based on its opinion that respirators are rarely used properly (because they are uncomfortable, are often not properly fitted, etc.) and therefore cannot be considered adequate protective measures.
281[27] It is also inapplicable to work operations involving 0.5% liquid benzene (0.1% after three years), see n.22, supra, and to the handling of benzene in sealed containers or systems, except insofar as employers are required to provide cautionary notices and appropriate employee training.
282[28] Prior to the introduction of the action-level concept, A.D. Little estimated that compliance costs for the service station industry might be as high as $4 billion. Tr. 508-509. Moreover, A. D. Little's Economic Impact Statement indicated that service station employees were generally exposed to very low levels of benzene. 1 Economic Impact Statement, p. 4-21, 11 Record, Ex. 5A, p. 4-21. Still, in its explanation, accompanying the permanent standard OSHA did not rule out regulation of this industry entirely, stating that it was in the process of studying whether and to what extent it should regulate exposures to gasoline in general. 43 Fed. Reg. 5943 (1978).
283[29] OSHA's estimate of recurring annual costs was based on the assumption that the exposure levels it had projected would be confirmed by initial monitoring and that, after the first year, engineering controls would be successful in bringing most exposures within the 1 ppm limit. Under these circumstances, the need for monitoring, medical examinations, and respirators would, of course, be drastically reduced.
284[30] Three hundred of these employees work in benzene plants, 5,000 in other petroleum refineries, 4,000 in light oil plants, 552 in the petrochemical industry, 156 in benzene transportation, 1,250 in laboratories, 11,400 in tire-manufacturing plants, and 13,050 in other rubber-manufacturing plants. OSHA also estimated that another 16,216 workers (5,000 in petroleum refineries, 1,104 in the petrochemical industry, 7,300 in bulk terminals, 312 in benzene transportation, and 2,500 in laboratories) would be exposed to 0.5 to 1 ppm of benzene and thus would receive a benefit in terms of more comprehensive medical examinations. Id., at 5936-5938.
285[31] The high cost per employee in the latter two industries is attributable to OSHA's policy of requiring engineering controls rather than allowing respirators to be used to reduce exposures to the permissible limit. The relatively low estimated cost per employee in the rubber industry is based on OSHA's assumption that other solvents and adhesives can be substituted for those that contain benzene and that capital costs will therefore not be required.
286[32] the other issue before us is whether the Court of Appeals correctly refused to enforce the dermal contact ban. That issue is discussed in Part IV, infra.
287In the court below respondents also challenged the monitoring and medical testing requirements,arguing that certain industries should have been totally exempt from them and that, as to other industries, the Agency had not demonstrated that all the requirements were reasonably necessary to ensure worker health and safety. They also argued that OSHA's requirement that the permissible exposure limit be met through engineering controls rather than through respirators was not reasonably necessary under the Act. Because it invalidated the 1 ppm exposure limit, the Fifth Circuit had no occasion to deal with these issues, and they are not now before this Court.
288[33] As we have often held, the validity of an agency's determination must be judged on the basis of the agency's stated reasons for making that determination. See SEC v. Chenery Corp., 318 U. S. 80, 95 ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"); FPC v. Texaco Inc., 417 U. S. 380, 397; FTC v. Sperry & Hutchinson Co., 405 U. S. 233,249.
289[34] OSHA itself noted, some blood abnormalities caused by benzene exposure may not have any discernible health effects, while others may lead to significant impairment and even death. 43 Fed. Reg. 5921 (1978).
290[35] A dose-response curve shows the relationship between different exposure levels and the risk of cancer [or any other disease] associated with those exposure levels. Generally, exposure to higher levels carries with it a higher risk, and exposure to lower levels is accompanied by a reduced risk." 581 F. 2d, at 504, n. 24.
291OSHA's comments with respect to the insufficiency of the data were addressed primarily to the lack of data at low exposure levels. OSHA did not discuss whether it was possible to make a rough estimate, based on the more complete epidemiological and animal studies done at higher exposure levels, of the significance of the risks attributable to those levels, not did it discuss whether it was possible to extrapolate from such estimates to derive a risk estimate for low-level exposures.
292[36] OSHA did not invoke the automatic rule of reducing exposures to the lowest limit feasible that it applies to cancer risks. Instead, the Secretary reasoned that prudent health policy merely required that the permissible exposure limit be set "sufficiently below the levels at which adverse effects have been observed to assure adequate protection for all exposed employees." 43 Fed. Reg. 5925 (1978). While OSHA concluded that application of this rule would lead to an exposure limit "substantially less than 10 ppm," it did not state either what exposure level it considered to present a significant risk of harm or what safety factor should be applied to that level to establish a permissible exposure limit.
293[37] While citing these studies, OSHA also noted that other studies of similarly exposed workers had not indicated any increased level of chromosome damage.
294[38] "The evidence in the record conclusively establishes that benzene is a human carcinogen. The determination of benzene's leukemogenicity is derived from the evaluation of all the evidence in totality and is not based on any one particular study. OSHA recognizes, as indicated above that individual reports vary considerably in quality, and that some investigations have significant methodological deficiencies. While recognizing the strengths and weaknesses in individual studies, OSHA nevertheless concludes that the benzene record as a whole clearly establishes a casual relationship between benzene and leukemia." Id., at 5931.
295[39] In rejecting these studies, OSHA stated that: "Although the epidemiological method can provide strong evidence of a causal relationship between exposure and disease in the case of positive findings, it is by its very nature relatively crude and an insensitive measure." After noting a number of specific ways in which such studies are often defective, the Agency stated that it is "OSHA's policy when evaluating negative studies, to hold them to higher standards of methodological accuracy." Id., at 5931-5932. Viewing the industry studies in this light, OSHA concluded that each of them had sufficient methodological defects to make them unreliable indicators of the safety of low-level exposures to benzene.
296[40] OSHA rejected this testimony in part because it believed the exposure data in the epidemiological studies to be inadequate to formulate a dose-response curve. It also indicated that even if the testimony was accepted— indeed as long as there was any increase in the risk of cancer—the Agency was under an obligation to "select the level of exposure which is most protective of exposed employers." Id., at 5941.
297[41] In this dissenting opinion, MR. JUSTICE MARSHALL states that the Agency did not rely "blindly on some Draconian carcinogen `policy'" in setting a permissible exposure limit for benzene. He points to the large number of witness the Agency heard and the voluminous record it complied as evidence that it relied instead on the particular facts concerning benzene. With all due respect, we disagree with MR. JUSTICE MARSHALL'S interpretation of the Agency's rationale for its decision. After hearing the evidence, the Agency relied on the same policy view it had stated at the outset, see supra,at 623-625, namely, that, in the absence of clear evidence to the contrary, it must be assumed that no safe level exists for exposure to a carcinogen. The Agency also reached the entirely predictable conclusion that industry had not carried its concealed impossible burden, see n. 41, infra, of proving that a safe level of exposure exists for benzene. As the Agency made clear later in its proposed generic cancer policy, see n. 51 infra, it felt compelled to allow industry witnesses to go over the same ground in each regulation dealing with a carcinogen, despite its policy view. The generic policy, which has not yet gone into effect, was specifically designed to eliminate this duplication of effort in each case by foreclosing industry from arguing that there is a safe level for the particular carcinogen being regulated. 42 Fed. Reg. 54154-54155 (1977).
298[42] "As stated above, the positive studies on benzene demonstrate the casual relationship of benzene to the induction of leukemia. Although these studies, for the most part involve high exposure levels, it is OSHA's view that once the carcinogenicity of a substance has been established qualitatively, any exposure must be considered to be attended by risk when considering any given population. OSHA therefore believes that occupational exposure to benzene at low levels poses a carcinogenic risk to workers." 43 Fed. Reg. 5932 (1978).
299[43] The so-called "one hit" theory is based on laboratory studies indicating that one molecule of a carcinogen may react in the test tube with one molecule of DNA to produce a mutation. The theory is that, if this occurred in the human body, the mutated molecule could replicate over a period of years and eventually develop into a cancerous tumor. See OSHA's Proposed Rule on the Identification, Classification and Regulation of Toxic Substances Posing a Potential Carcinogenic Risk, 42 Fed. Reg. 54148, 54165-54167 (1977). Industry witnesses challenged this theory, arguing that the presence of several different defense mechanisms in the human body make it unlikely that a person would actually contract cancer as a result of absorbing one carcinogenic molecule. Thus, the molecule might be detoxified before reaching a critical site, damage to a DNA molecule might be repaired, or a mutated DNA molecule might be destroyed by the body's immunological defenses before it could develop into a cancer. Tr. 2836.
300In light of the improbability of a person's contracting cancer as a result of a single hit, a number of the scientists testifying on both sides of the issue agreed that every individual probably does have a threshold exposure limit below which he or she will not contract cancer. See, e. g., id., at 1179-1181. The problem, however, is that individual susceptibility appears to vary greatly and there is at present no way to calculate each and every person's threshold. Thus, even industry witnesses agreed that if the standard must ensure with absolute certainty that every single worker is protected from any risk of leukemia, only a zero exposure limit would suffice. Id., at 2492, 2830.
301[44] "There is no doubt that benzene is a carcinogen and must, for the protection and safety of workers, be regulated as such. Given the inability to demonstrate a threshold or establish a safe level, it is appropriate that OSHA prescribe that the permissible exposure to benzene be reduced to the lowest level feasible" 43 Fed. Reg. 5932 (1978).
302[45] At an earlier point in its explanation, OSHA stated:
303304"There is general agreement that benzene exposure cause leukemia as well as other fatal diseases of the blood forming organs. In spite of the certainty of this conclusion, there does not exist an adequate scientific basis for establishing the quantitative does response relationship between exposure to benzene and the induction of leukemia and other blood diseases. The uncertainty in both the actual magnitude of expected deaths and in the theory of extrapolation from existing data to the OSHA exposure levels places the estimation of benefits on `the frontiers of scientific knowledge.' While the actual estimation of the number of cancers to be prevented is highly uncertain, the evidence indicates that the number may be appreciable. There is general agreement that even in the absence of the ability to establish a `threshold' or `safe' level for benzene and other carcinogens, a dose response relationship is likely to exist; that is, exposure to higher doses carries with it a higher risk of cancer, and conversely, exposure to lower levels is accompanied by a reduced risk, even though a precise quantitative relationship cannot be established." Id., at 5940.
[46] The court did, however, hold that the Agency's other conclusions— that there is some risk of leukemia at 10 ppm and that the risk would decrease by decreasing the exposure limit to 1 ppm—were supported by substantial evidence. 581 F. 2d, at 503.
305[47] We cannot accept the argument that § 3 (8) is totally meaningless. The Act authorizes the Secretary to promulgate three different kinds of standards—national consensus standards, permanent standards, and temporary emergency standards. The only substantive criteria given for two of these—national consensus standards and permanent standards for safety hazards not covered by § 6 (b) (5)—are set forth in § 3. While it is true that § 3 is entitled "definitions," that fact does not drain each definition of substantive content. For otherwise there would be no purpose in defining the critical terms of the statute. Moreover, if the definitions were ignored, there would no statutory criteria at all to guide the Secretary in promulgating either national consensus standards or permanent standards other than those dealing with toxic materials and harmful physical agents. We may not except Congress to display perfect craftsmanship, but it is unrealistic to assume that it intended to give no direction whatsoever to the Secretary in promulgating most of his standards.
306The structure of the separate subsection describing emergency temporary standards, 29 U. S. C. § 655 (c), quoted in n. 13, supra, supports this conclusion. It authorizes the Secretary to bypass the normal procedures for setting permanent standards if he makes two findings: (A) that employees are exposed to "grave danger" from exposure to toxic substances and (B) that an emergency standard is "necessary" to toxic protect the employees from that danger. Those findings are to be compared with those that are simplicity required by the definition of the permanent standard—(A) that there be a significant—as opposed to a "grave"—risk, and (B) that additional regulation is "reasonably necessary or appropriate"—as opposed to "necessary." It would be anomalous for Congress to require specific findings for temporary standards but to give the Secretary a carte blanche for permanent standards.
307[48] The Government does not concede that the feasibility requirement in the second sentence of § 6 (b) (5) applies to health and safety standards other than toxic substances standards. See n. 1, supra. However, even if it did, the Government's interpretation of the term "feasible," when coupled with its view § 3 (8), would still allow the Agency to require the elimination of even insignificant risks at great cost, so long as an entire industry's viability would not be jeopardized.
308[49] Section 6 (b) (5) parallels § 6 (a) in this respect. Section 6 (a) requires the Secretary, when faced with a choice between two national consensus standards, to choose the more protective standard, see n.7, supra. Just as § 6 (a) does not suggest that this more protective standard need not meet the definition of a national consensus standard set forth in § 3 (9), so § 6 (b) (5) does not suggest that the most protective toxic material standard need not conform to the definition of a "standard" in § 3 (8).
309[50] The rest § 6 (b) (5), while requiring the Secretary to promulgate the standard that "most adequately assures . . . that no employee will suffer material impairment of health or functional capacity,"also contains phrases implying that the Secretary should consider differences in degrees of significance rather than simply a total elimination of all risks. Thus, the standard to be selected is one that "most adequately assures, to the extent feasible, on the basis of the best available evidence," that no such harm will result. The Secretary is also directed to take into account "research, demonstrations, experiments, and such other information as may be appropriate" and to consider "[i]n addition to the attainment of the highest degree of health and safety protection for the employee . . . the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws."
310MR. JUSTICE MARSHALL states that our view of § 3 (8) would make the first sentence in § 6 (b) (5) superfluous. We disagree. The first sentence of § 6 (b) (5) requires the Secretary to select a highly protective standard once he has determined that a standard should be promulgated. The threshold finding that there is a need for such a standard in the sense that there is a significant risk in the workplace is not unlike the threshold finding that a chemical is toxic or a physical agent is harmful. Once the Secretary has made the requisite threshold finding, § 6 (b) (5) directs him to choose the most protective standard that still meets the definition of a standard under § 3 (8), consistent feasibility.
311[51] "First, 29 U. S. C. § 655 (g) requires the Secretary to establish priorities in setting occupational health and safety standards so that the more serious hazards are addressed first. In setting such priorities the Secretary must, of course, consider the relative costs, benefits and risks." Reply Brief for Federal Parties 13. The Government argues that the Secretary's setting of priorities under this section is not subject to judicial review. Tr. of Oral Arg. 23. While we agree that a court cannot tell the Secretary which of two admittedly significant risks he should act to regulate first, this section, along with §§ 3 (8) and 6 (b) (5), indicates that the Act does limit the Secretary's power to requiring the elimination of significant risks.
312[52] Section 6 (b) (8), as set forth in 28 U. S. C. § 655 (b) (8), provides:
313314"Whenever a rule promulgated by the Secretary differs substantially from an existing national consensus standard, the Secretary shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus standard."
[53] OSHA's proposed generic cancer policy, 42 Fed. Reg. 54148 (1977), indicates that this possibility is not merely hypothetical. Under its proposal, whenever there is a certain quantum of proof—either from animal experiments, or, less frequently, from epidemiological studies—that a substance causes cancer at any exposure level, an emergency temporary standard would be promulgated immediately, requiring employers to provide monitoring and medical examinations and to reduce exposures to the lowest feasible level. A proposed rule would then be issued along the same lines, with objecting employers effectively foreclosed from presenting evidence that there is little or no risk associated with current exposure levels. Id., at 54154-54155; 29 CFR, Part 1990 (1977).
315The scope of the proposed regulation is indicated by the fact that NIOSH has published a list of 2,415 potential occupational carcinogens, NIOSH, Suspected Carcinogens: A Subfile of the Registry of Toxic Effects of Chemical Substances (HEW Pub. No. 77-149, 2d ed. 1976). OSHA has tentatively concluded that 269 of these substances have been proved to be carcinogens and therefore should be subject to full regulation. See OSHA Press Release, USDL 78-625 (July 14, 1978).
316[54] In criticizing the Committee bill, Senator Dominick also made the following observations:
317318"It is unrealistic to attempt, as this section apparently does, to establish a utopia free from any hazards. Absolute safety is an impossibility and it will only create confusion in the administration of this act for the Congress to set clearly unattainable goals." 116 Cong. Rec. 37614 (1970), Leg. Hist. 480.
"But I ask, Mr. President, just thinking about that language, let us take a fellow who is a streetcar conductor or a bus conductor at the present time. How in the world, in the process of the pollution we have in the streets or in the process of the automobile accidents that we have all during a working day of any one driving a bus or trolley car, or whatever it may be, can we set standards that will make sure he will not have any risk to his life for the rest of his life? It is totally impossible for this to be put in a bill; and yet it is in the committee bill." 116 Cong. Rec., at 37337, Leg. Hist. 423.
As an opponent of the legislation, Senator Dominick may have exaggerated the significance of the problem since the language in § 3 (8) already was sufficient to prevent the Secretary from trying "to establish a utopia free from any hazards." Nevertheless, the fact that Congress amended the bill to allay Senator Dominick's concern demonstrates that it did not intend the statute to achieve "clearly unattainable goals."
319[55] Senator Dominick had also been concerned that the placement of the word "feasibly" could be read to require the Secretary to "ban all occupations in which there remains some risk of injury, impaired health, or life expectancy," since the way to most "adequately and "feasibly" assure absolute protection might well be to prohibit the occupation entirely. 116 Cong. Rec., at 36530, Leg. Hist. 366-367. In his final amendment, he attempted to cure this problem by relocating the feasibility requirement, changing "the standard which most adequately and feasibly assures" to "the standard which most adequately assures, to the extent feasible."
320[56] MR. JUSTICE MARSHALL argues that Congress could not have thought § 3 (8) had any substantive meaning inasmuch as § 6 (b) (5), as originally drafted, applied to all standards and not simply to standards for toxic materials and harmful physical substances. However, as this legislative history indicates,it appears that the omission of the words "toxic substances" and "harmful physical agents" from the original draft of § 6 (b) (5) was entirely inadvertent. As Senator Dominick noted, the Committee had always intended that subsection to apply only to that limited category of substances. The reason that Congress drafted a special section for these substances was not, as MR. JUSTICE MARSHALL suggests, because it thought that there was a need for special protection in these areas. Rather, it was because Congress recognized that there were problems in regulating health risks as opposed to safety risks. In the latter case, the risks are generally immediate and obvious, while in the former, the risks may not be evident until a worker has been exposed for long periods of time to particular substances. It was to ensure that the Secretary took account of these long-term risks that Congress enacted § 6 (b) (5).
321[57] Reply Brief for Federal Parties 24-26. While it is true that some of Senator Dominick's comments were concerned with the relative unimportance of minor injuries (see his "fly" example quoted supra, at 647), it is clear that he was also concerned with the remote possibility of major injuries, see n. 52, supra.
322[58] One union suggested a 0.5 ppm permissible exposure limit for oil refineries and a 1 ppm ceiling (rather than a time-weighted average) exposure for all other industries, with no use of an action level, Tr. 1250, 1257. Another wanted a 1 ppm ceiling limit for all industries, id., at 3375-3376.
323[59] "A need for an action level is also suggested by the record evidence that some minimal exposure to benzene occurs naturally from animal and plant matter (Tr. 749-750; 759-760). Naturally occurring benzene concentrations, it appears, many range from 0.02 to 15 per billion (Ex. 117, p. 1). Additionally, it was suggested by certain employers that their operations be exempted from the requirements of the standard because these operations involve only intermittent and low level exposures to benzene. The use of the action level concept should accommodate these concerns in all cases where exposures are indeed extremely low since it substantially reduces the monitoring of employees who are below the action level and removes for these employees the requirements for medical surveillance. At the same time, employees with significant overexposure are afforded the full protection of the standard." (Emphasis added.) 43 Fed. Reg. 5942 (1978).
324[60] The Government also states that it is OSHA's policy to attempt to quantity benefits wherever possible. While this is certainly a reasonable position, it is not consistent with OSHA's own view of its duty under § 6 (b) (5). In light of the inconsistencies in OSHA's position and the legislative history of the Act, we decline to defer to the Agency's interpretation.
325[61] In Florida Peach Growers Assn., Inc. v. U. S. Dept. of Labor, 489 F. 2d 120, 130, and n. 16 (CA5 1974), the court noted that Congress intended to restrict the use of emergency standards, which are promulgated without any notice or hearing. It held that, in promulgating an emergency standard, OSHA must find not only a danger of exposure or even some danger from exposure, but also a grave danger from exposure necessitating emergency action. Accord, Dry Color Mfrs. Assn., Inc. v. U. S. Dept. of Labor, 486 F. 2d 98, 100 (CA3 1973) (an emergency standard must be supported by something more than a possibility that a substance may cause cancer in man).
326Congress also carefully circumscribed the Secretary's enforcement powers by crating a new, independent board to handle appeals from citations issued by the Secretary, for noncompliance with health and safety standards. See. 28 U. S. C. §§ 659-661.
327[62] As noted above, OSHA acknowledged that there was no empirical evidence to support the conclusion that there was any risk whatsoever of deaths due to exposures at 10 ppm. What OSHA relied upon was a theory that, because leukemia deaths had occurred at much higher exposures, some (although fewer) were also likely to occur at relatively low exposures. The Court of Appeals specifically held that its conclusion that the number was "likely" to be appreciable was unsupported by the record. See supra, at 638.
328[63] See Environmental Defense Fund, Inc. v. EPA, 179 U. S. App. D. C. 43, 49, 57-63, 548 F. 2d 998, 1004, 1012-1018 (1977), cert. denied, 431 U. S. 925, where the court rejected the argument that the EPA has the burden of proving that a pesticide is unsafe in order to suspend its registration under the Federal Insecticide, Fungicide, and Rodenticide Act. The court noted that Congress had deliberately shifted the ordinary burden of proof under the Administrative Procedure Act, requiring manufacturers to establish the continued safety of their products.
329[64] In his dissenting opinion, post, at 706, MR. JUSTICE MARSHALL states: "[W]hen the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts. Factual determinations can at most define the risk in some statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts." We agree. Thus, while the Agency must support its finding that a certain level risk exists by substantial evidence, we recognize that its determination that a particular level of risk is "significant" will be based largely on policy considerations. At this point we have no need to reach the issue of what level of scrutiny a reviewing court should apply to the latter type of determination.
330[65] MR. JUSTICE MARSHALL states that, under our approach, the Agency must either wait for deaths to occur or must "deceive the public" by making a basically meaningless determination of significance based on totally inadequate-evidence. MR. JUSTICE MARSHALL's view, however, rests on the erroneous premise that the only reason OSHA did not attempt to quantify benefits in this case was because it could not do so in any reasonable manner. As the discussion of the Agency's rejection of an industry attempt at formulating a dose-response curve demonstrates, however, see supra, 635-655, the Agency's rejection of methods such as dose-response curves was based at least in part on its view that nothing less than absolute safety would suffice.
331[66] For example,in the coke-oven emissions standard, OSHA had calculated that 21,000 exposed coke-oven workers had an annual excess mortality of over 200 and that the proposed standard might well eliminate the risk entirely. 41 Fed. Reg. 46742, 46750 (1976), upheld in American Iron & Steel Inst. v. OSHA, 577 F. 2d 825 (CA3 1978), cert. granted, post, p. 909. In hearings on the coke-oven emissions standard, the Council on Wage and Price Stability estimated that 8 to 35 lives would be saved each year, out of an estimated population of 14,000 workers, as a result of proposed standard. Although nothing that the range of benefits would vary depending on the assumptions used, OSHA did not make a finding as to whether its own staff estimate or CWPS's was correct, on the ground that it was not required to quantify the expected benefits of the standard or to weigh those benefits against the projected costs.
332In other proceedings, the Agency has had a good deal of data from animal experiments on which it could base a conclusion on the significance of the risk. For example, the record on the vinyl chloride standard indicated that a significant number of animals had developed tumors of the liver, lung, and skin when they were exposed to 50 ppm of vinyl chloride over a period of 11 months. One hundred out of 200 animals died during that period. 39 Fed. Reg. 35890, 35891 (1974). Similarly, in a 1974 standard regulating 14 carcinogens, OSHA found that one of the substances had caused lung cancer in mice or rats at 1 ppm and even 0.1 ppm, while another had caused tumors in 80% of the animals subjected to high doses. Id., at 3756, 3757, upheld in Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 503 F. 2d 1155 (CA3 1974), cert. denied, 420 U. S. 973, and Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 506 F. 2d 385 (CA3 1974), cert. denied, 423 U. S. 830.
333In this case the Agency did not have the benefit of animal studies, because scientists have been unable as yet to induce leukemia in experimental animals as a result of benzene exposure. It did, however, have a fair amount of epidemiological evidence, including both positive and negative studies. Although the Agency stated that this evidence was insufficient to construct a precise correlation between exposure levels and cancer risks, it would at least be helpful in determining whether it is more likely than not that there is a significant risk at 10 ppm.
334[67] See GAF Corp. v. Occupational Safety and Health Review Comm'n, 183 U. S. App. D. C. 20, 561 F. 2d 913 (1977), where the court upheld the asbestos standard insofar as it required employers to provide medical examinations for employees exposed to any asbestos fibers, even if they were exposed to concentrations below the permissible exposure limit.
335The respondent industry representatives have never disputed OSHA's power to require monitoring and medical examinations in general, although they did object to some of the specific requirements imposed in this case. See n. 30, supra. Because of our disposition of the case, we have no occasion to pass on these specific objections or to determine what cost-benefit considerations, if any, should govern the Agency's imposition of such requirements.
336[68] This is precisely the type of information-gathering function that Congress had in mind when it enacted § 6 (b) (7), which empowers the Secretary to require medical examinations to be furnished to employees exposed to certain hazards and potential hazards "in order to most effectively determine whether the health of such employees is adversely affected by such exposure." See S. Rep. No. 91-1282, p. 7 (1970), Leg. Hist. 147.
337[69] In its explanation of the final standard OSHA noted that there was some testimony that blood abnormalities would disappear after exposure had ceased. 43 Fed. Reg. 5946 (1978). Again, however, OSHA refused to rely on the hypothesis that this would always occur. Yet, in requiring medical examinations of employees exposed to between 0.5 ppm and 1 ppm, OSHA was essentially providing itself with the same kind of backstop.
338[70] These portions of the plurality opinion address OSHA's special carcinogen policy, rather than OSHA's argument that it also made evidentially findings. I do not necessarily agree with every observation in the plurality opinion concerning the presence or a absence of such findings. I also express no view on the question whether a different interpretation of the statute would violate the non delegation doctrine of A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935), and Panama Refining Co. v. Ryan, 293 U. S. 495 (1935). See post, at 672-687 (REHNQUIST, J., concurring in judgment).
339[71] The Secretary of Labor promulgated the relevant standard pursuant to his statutory authority. Since OSHA is the agency responsible for developing such regulations under the Secretary's direction, this opinion refers to "OSHA" or "the agency" as the decision-maker most directly concerned.
340[72] OSHA has adopted a formal policy for regulating carcinogens effective April 21, 1980. 45 Fed. Reg. 5282 (1980) (to be codified at 29 CFR, Part 1990). But no such policy was in effect when the agency promulgated its benzene regulation. Moreover, neither the factual determinations nor the administrative judgments upon which the policy rests are supported adequately on this record alone. Accordingly, we have no occasion to consider the extent to which valid agency policies may supply a basis for finding that health risks exist in particular cases.
341[73] OSHA argues that § 6 (b) (5) requires it to promulgate standards that are "feasible" only in the sense that they are "capable of achievement"; that is, achievable "at bearable cost with available technology." Brief for Federal Parties 57. the lower courts have indicated that a standard is not "infeasible" under OSHA's test unless it would precipitate "massive economic dislocation" in the affected industry. See, e. g., American Federation of Labor v. Brennan, 530 F. 2d 109, 123 (CA3 1975). In this case, OSHA simply asked a consulting firm to ascertain the costs of complying with a 1 ppm standard. See ante, at 621. OSHA then concluded that "the economic impact of [compliance] will not . . . threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978). The cost of complying with a standard, may be "bearable" and still not reasonably related to the benefits expected. A manufacturing company, for example, may have financial resources that enable it to pay the OSHA-ordered costs. But expenditures for unproductive purposes may limit seriously its financial ability to remain competitive and provide jobs.
342[74] I will not repeat the detailed summary of the legislative history contained in the plurality opinion. Ante, at 646-652. Many of the considerations that the plurality relies upon to show Congress' concern with significant harms persuade me that Congress did not intend OSHA to reduce each significant hazard without regard to economic consequences. Senator Williams, a sponsor of the legislation, stated: "Our bill is fair and reasonable. It is a good-faith effort to balance the need of workers to have a sa[f]e and healthy work environment against the requirement of industry to function without undue interference." 116 Cong. Rec. 37342 (1970). Legislative history of the Occupational Safety and health Act of 1970 (Committee Print complied for the Senate Committee on Labor and Public Welfare), p. 435 (1971). There could be no such "balance" if OSHA were authorized to impose standards without regard to economic consequences short of serious dislocation.
343Senator Dominick described a preliminary version of §6 (b) (5) as follows:
344345"What we were trying to do in the bill . . . was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone [sic] would be assured that no one would have a hazard. . . .
"It was an unrealistic standard. . . ." 116 Cong. Rec. 37622 (1970), Legislative History, supra, at 502 (emphasis added).
Senator Dominick's objection to the "unrealistic" standard of the forerunner of § 6 (b) (5) does not imply that he thought § 3 (8) of the Act lacked substantive content. See post, at 710-711 (MARSHALL, J., dissenting). The Senator hardly would have proposed that § 6 (b) (5) be deleted entirely, see ante, at 647, if he had not thought that other sections of the Act required health regulations that were reasonable and practical.
346[75] Congress has assigned OSHA an extremely difficult and complex task, and the guidance afforded OSHA is considerably less than clear. The agency's primary responsibility, reflected in its title, is to minimize health and safety risks in the workplace. Yet the economic health of our highly industrialized society requires a high rate of employment and adequate response to increasingly vigorous foreign competition. There can be little doubt that Congress intended OSHA to balance reasonably the societal interest in health and safety with the often conflicting goal of maintaining a strong national economy.
347[76] For example, OSHA's reading of § 6 (b) (5) could force the depletion of an industry's resources in an effort to reduce a single risk by some speculative amount, even though other significant risks remain unregulated.
348[77] The decision that costs justify benefits is largely a policy judgment delegated to OSHA by Congress. When a court reviews such judgments under the "substantial evidence" standard mandated by 29 U. S. C. § 655 (f), the court must determine whether the responsible agency has "careful[ly] identifi[ed] . . . the reasons why [it] chooses to follow one course rather than another" as the most reasonable method of effectuating the purposes of the applicable law. Industrial Union Dept. v. Hodgson, 162 U. S. App. D. C. 331, 339-340, 499 F. 2d 467, 475-476 (1974). Since OSHA failed to identify its reasons in these cases, I express no opinion as to the standard of review that may be appropriate in other situations.
349[78] J. Locke, Second Treatise of Civil Government, in the Tradition of Freedom, ¶ 141, p. 244 (M. Mayer ed. 1957). In the same treatise, Locke also wrote that "[t]he legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others." Ibid.
350[79] As early as 1812, this Court had considered and rejected an argument that a statute authorizing the President to terminate a trade embargo on Britain and France if those two nations ceased violating "the neutral commerce of the United States" delegated too much discretion to the Executive Branch. See The Brig Aurora v. United States, 7 Cranch 382, 383, 386, 388.
351[80] Respondents argue that, despite its seemingly general application, the original version of § 6 (b) (5) actually referred only to health hazards as opposed to safety hazards. See Addendum B to Brief for Respondents American Petroleum Institute et al. 5b-6b. In support of this proposition, they cite a portion of the legislative history where the House Committee on Education and Labor stated that the proposed version of § 6 (b) (5) would apply when the Secretary set an "occupational health standard." H. R. Rep. No. 91-1291, p. 18 (1970), Leg. Hist. 848.
352[81] The legislative history indicates strongly that Senator Dominick himself saw little, if any, difference between the phrases "most adequately and feasibly assures" and "most adequately assures, to the extent feasible." In the course of his earlier attempt to delete the first sentence of § 6 (b) (5) entirely, be paraphrased the unamended version of that section as requiring the Secretary to promulgate standards that "most adequately and feasibly assure to the extent possible" that no employee would suffer harm. See 116 Cong. Rec. 36530 (1970), Leg. Hist. 367 (emphasis added). Unless Senator Dominick found a significant difference between the words "possible" and "feasible", it is clear that there is little difference between Senator Dominick's perception of what the unamended section required in the way of feasibility and what that section required after his amendment.
353[82] Sections 211 (c) (2) (A) and (B) of the Clean Air Act, as amended on Dec. 31, 1970, 84 Stat. 1698, authorize the Environmental Protection Agency to regulate, control, or prohibit automotive fuel additives after "consideration of other technologically or economically feasible means of achieving emission standards. . . ." 42 U. S. C. § 7545 (c) (2) (A) (1976 ed., Supp. II) (emphasis added).
354[83] See J. Ely, Democracy and Distrust, A Theory of Judicial Review 131-134 (1980); J. Freedman, Crisis and Legitimacy, The Administrative process and American Government 78-94 (1978); T. Lowi, The End of Liberalism; Ideology, Policy, and the Crisis of Public Authority 129-146, 297-299 (1969); Wright, Beyond Discretionary Justice, 81 Yale L. J. 575, 582-587 (1972); Waist-Deep in Regulation, Washington Post, Nov. 3, 1979, p. A10, col. 1. Cf. W. Douglas, Go East, Young Man 217 (1974).
355[84] See K. Davis, Discretionary Justice: A Preliminary Inquiry 49-51 (1969); Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1693-1697 (1975). Cf. Jaffe, The Illusion of the Ideal Administration, 86 Harv. L. Rev. 1183, 1190, n. 37 (1973).
356[85] This ruling would not have any effect upon standards governing toxic substances or harmful physical agents for which safe levels are feasible, upon extant standards promulgated as "national consensus standards" under § 6 (a), not upon the Secretary's authority to promulgate "emergency temporary standards" under § 6 (c).
357[86] Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. iii (1971) (Foreword by Sen. Williams) (hereinafter Leg. Hist.).
358[87] S. Rep. No. 91-1282, p. 2 (1970), Leg. Hist. 142.
359[88] Leg. Hist. iii.
360[89] S. Rep. No. 91-1282, p. 2 (1970), Leg. Hist. 142; 116 Cong. Rec. 37326 (1970), Leg. Hist. 415 (Sen. Williams); H. R. Rep. No. 91-1291, p. 19 (1970), Leg. Hist. 849; 116 Cong. Rec. 38392-38393 (1970), Leg. Hist. 1049 (Rep. Karth).
361[90] 116 Cong. Rec. 38375 (1970), Leg. Hist. 1003 (Sen. Daniels).
362[91] 116 Cong. Rec., at 37623, Leg. Hist. 503 (Sen. Dominick); H. R. No. 91-1291, p. 28 (1970), Leg. Hist. 858.
363[92] See n. 34, infra.
364[93] An earlier version of the bill had provided:
365366"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." S. 2193, 91st Cong., 2d Sess., 39 (1970), Leg. Hist. 242.
This standard, it was feared, "could be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most `adequately' and `feasibly' assure the elimination of the danger would be the prohibition of the occupation itself." 116 Cong. Rec. 36530 (1970), Leg. Hist. 367 (Statement on Amendment of Sen. Dominick). In explaining the present language, Senator Dominick stated:
367368"What we were trying to do in the bill—unfortunately, we did not have the proper wording or the proper drafting—was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone would be assured that no one would have a hazard . . . so that no one would have any problem for the rest of his working life.
"It was an unrealistic standard. As modified, we would be approaching the problem by looking at the problem and setting a standard or criterion which would not result in harm." 116 Cong. Rec., at 37622, Leg. Hist. 502.
[94] I do not, of course, suggest that it is appropriate for a federal court reviewing agency action blindly to defer to the agency's findings of fact and determinations of policy. Under Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971), courts must undertake a "searching and careful" judicial inquiry into those factors. Such an inquiry is designed to require the agency to take a "hard look," Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976) (citation omitted), by considering the proper factors and weighing them in a reasonable manner. There is also room for especially rigorous judicial scrutiny of agency decisions under a rationale akin to that offered in United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938). See Environmental Defense Fund v. Ruckelshaus, 142 U. S. App. D. C. 74, 439 F. 2d 584 (1971).
369I see no basis, however, for the approach taken by the plurality today, which amounts to nearly de novo review of questions of fact and of regulatory policy on behalf of institutions that are by no means unable to protect themselves in the political process. Such review is especially inappropriate when the factual questions at issue are ones about which the Court cannot reasonably be expected to have expertise.
370[95] Tr. 258-259, 1039.
371[96] Id., at 148, 200-201, 258.
372[97] Id., at 145, 173-174, 352, 1227, 1928, 3206; 15 Record, Ex. 43B, p. 166.
373[98] Id., at 149, 360-361, 997, 1023, 2543, 2689, 3203; 11 Record, Ex. 3.
374[99] Tr. 149, 1218, 2692, 2847.
375[100] Id., at 308, 314, 747, 768, 769-770, 874, 2445. As the Secretary observed, the issue of the exposure level in the NIOSH study was extensively debated during the hearings. A report from the Industrial Commission of Ohio suggested that concentrations generally ranged from zero to 10 or 15 ppm. But the Secretary concluded that evidence at the hearings showed that area exposures during the study period had sometimes substantially exceeded that level. Because of the conflicting evidence and the absence of monitoring data, he found that the excess leukemia risk observed in the NIOSH study could not be linked to any particular exposure level.
376[101] As to the study on which industry relied most heavily, for example, the Secretary, largely repeating the author's own admissions, observed that (1) a number of employees included in the sample may not have been exposed to benzene at any time; (2) there was inadequate followup of numerous employees, so that persons who may have contracted leukemia were not included in the data; (3) the diagnoses were subject to serious question, and cases of leukemia may have gone unnoticed; (4) no determination of exposure levels had been made; and (5) the occupational histories of the workers were admittedly incomplete. 43 Fed. Reg. 5928 (1978).
377[102] Tr. 1023-1024, 1227; 22A Record, Ex. 154.
378[103] The testimony of Dr. Aksoy, one of the world's leading experts, was typical; "[E]ven one ppm . . . causes leukemia." Tr. 204. See also id., at 30, 150, 262, 328, 351-352, 363-364, 394, 745-746, 1057, 1210, 2420; 9 Record, Ex. 2.8-272, p. 1.
379[104] Tr. 130, 360, 414-415, 416-417, 760-761, 781-782, 925, 1055-1056; 17 Record, Ex. 75, p. 2; 1 Record, Ex. 2-4, p. 11.
380[105] Tr. 382, 401, 405, 1372, 2846, 2842-2843.
381[106] Id., at 148-149 ("the permissible exposure limit for benzene should be zero") (testimony of Dr. Aksoy). See also id., at 1251 et seq., 3506 et seq.
382[107] The plurality's estimate of the amount of expenditure per employee, see ante, at 629, is highly misleading. Most of the costs of the benzene standard would be incurred only once and would thus protect an unascertainable number of employees in the future; that number will be much higher than the number of employees currently employed.
383[108] The projection, designed as an extrapolation from an amalgamation of existing studies, was dependent on a number of assumptions which the Secretary could reasonably view as questionable. Indeed, the witness himself stated that his estimate was based on "a lousy set of data," was "slightly better than a guess," Tr. 2772, and that there was "no real basis," id., at 2719, for a dose-response curve on which the estimate was wholly dependent.
384The witness' assumptions were severely tested during the hearings, see id., at 2795 et seq., and the Secretary could reasonably reject them on the basis of the evidence in the record. For example: (1) The witness appeared to assume that in previous tests leukemia had been contracted after a lifetime of exposure; the evidence afforded no basis for that assumption, and the duration of exposure may have been quite short for particular employees. If the duration period was short, the witness' estimate would have been much too low. (2) The witness assumed that exposure levels in the NIOSH study were around 100 ppm. The Secretary found, however, that no such assumption could be made, and there was evidence that exposure levels had generally been between zero and 10-15 ppm. (3) The witness assumed that the dose-response curve was linear at all levels, but there was no basis for that assumption. In the case of vinyl chloride (another carcinogen for which the Secretary has promulgated exposure standards), recent evidence suggested that the dose-response curve rises steeply at low doses and becomes less steep as the levels are increased. (4) Twenty-five percent of the workers in the NIOSH study had not been found, and the witness assumed that they were still alive and would not contract leukemia. Six hundred additional workers exposed in that study were still alive; the witness assumed they too would not contract leukemia. There was considerable testimony that, for these and other reasons, the NIOSH study significantly underestimated the risk. The witness assumes that it had not. (5) The NIOSH study found a fivefold excess risk from benzene exposure; the witness assumed that the excess was much lower, despite the NIOSH finding and the testimony that that finding was a significant understatement of the risk. In light of these uncertainties, the Secretary could conclude that the witness' estimate was unsupportable.
385[109] Witnesses testifying to the inability to construct a dose-response curve referred primarily to the impossibility of correlating the incidence of leukemia, blood disorders, and chromosomal damage with the levels and duration of exposure in past studies. Thus Dr. Herman Kraybill of the National Cancer Institute testified:
386387"[W]e like to estimate risk factors. This has been done, as many of you recall, with vinyl chloride several years ago.
". . . [T]o estimate the risk factors on [the basis of] experimental data, this presupposes if you have good toxicity data. When I say toxicity data, I mean good dose-response data on vinyl chloride, which indeed we did have that.
"But with benzene, it appeared that we didn't have this situation, so therefore, most of us gave up. . . .
.....
". . . With benzene, we sort of struck out." Id., at 760-761.
Because of the enormous uncertainties in levels and duration of exposure in prior studies, any assumptions would necessarily be arbitrary. The possible range of assumptions was so great that the ultimate conclusion would be entirely uninformative. See id., at 360, 415, 1055-1056.
388[110] At one point the Secretary did indicate that appreciable benefits were "likely" to result. The Court of Appeals held that this conclusion was unsupported by substantial evidence. The Secretary's suggestion, however, was made in the context of a lengthy discussion intended to show that appreciable benefits "may" be predicted but that their likelihood could not be quantified. The suggestion should not be taken as a definitive statement that appreciable benefits were more probable than not.
389For reasons stated infra, there is nothing in the Act to prohibit the Secretary from acting when he is unable to conclude that appreciable benefits are more probable than not.
390[111] This is not to say that the Secretary is prohibited from examining relative costs and benefits in the process of setting priorities among hazardous substances, or that systematic consideration of costs and benefits is not to be attempted in the standard-setting process. Efforts to quantify costs and benefits, like statements of reasons generally, may help to promote informed consideration of decisional factors and facilitate judicial review. See Dunlop v. Bachowski, 421 U. S. 560, 571-574 (1975). The Secretary indicates that he has attempted to quantify costs and benefits in the past. See 43 Fed. Reg. 54354, 54427-54431 (1978) (lead); id., at 27350, 27378-27379 (cotton dust).
391It is not necessary in the present litigation to say whether the Secretary must show a reasonable relation between costs and benefits. Discounting for the scientific uncertainty, the Secretary expressly—and reasonably— found such a relation here.
392[112] It is useful to compare the Act with other regulatory statutes in which Congress has required a showing of a relationship between costs and benefits or of an "unreasonable risk." In some statutes Congress has expressly required cost-benefit analysis or a demonstration of some reasonable relation between costs and benefits. See 33 U. S. C. § 701a (Flood Control Act of 1936); 42 U. S. C. § 7545 (c) (2) (B) (1976 ed., Supp. II) (Clean Air Act); 33 U. S. C. § 1314 (b) (4) (B) (1976 ed., Supp. II) (Clean Water Act). In others Congress has imposed two independent requirements: that administrative action be "feasible" and justified by a balancing of costs and benefits, e. g., 43 U. S. C. § 1347 (b) (1976 ed., Supp. II) (Outer Continental Shelf Lands Act); 42 U. S. C. § 6295 (a) (2) (D) (1976 ed., Supp. II) (Energy Policy and Conservation Act). This approach demonstrates a legislative awareness of the difference between a feasibility constraint and a constraint based on weighing costs and benefits. See infra, at 719-720. In still others Congress has authorized regulation of "unreasonable risk," a term which has been read by some courts to require a balancing of costs and benefits. See, e. g., Aqua Slide `N' Dive Corp. v. Consumer Product Safety Comm'n, 569 F. 2d 831 (CA5 1978) (construing 15 U. S. C. § 2058 (c) (2) (A) (Consumer Product Safety Act)); Forester v. Consumer Product Safety Comm'n, 182 U. S. App. D. C. 153, 559 F. 2d 774 (1977) (construing 15 U. S. C. § 1261 (s) (Child Protection and Toy Safety Act)).
393[113] The plurality also relies on its perception that if the "reasonably necessary" clause were not given the meaning it ascribes to it, there would be no guidance for "standards other than those dealing with toxic materials and harmful physical agents." Ante, at 640, n. 45. For two reasons this argument is without force. First, even if the "reasonably necessary" clause does have independent content, and even if that content is as the plurality describes it, it cannot under any fairminded reading supersede the express language of § 655 (b) (5) for toxic substances and harmful physical agents.
394Second, as noted above, an earlier version of the bill applied the "no employee will suffer" language to all substances. At that time, there was no "gap," and accordingly it could not be argued that the "reasonably necessary or appropriate" clause had the content the plurality ascribes to it. In this light, the plurality's reasoning must be that when Congress amended the bill to apply the strict § 655 (b) (5) requirements only to toxic substances, the definitional clause gained an independent meaning that in turn comprehended all standards. But surely this argument turns congressional purposes on their head. It reasons that when Congress singled out toxic substances for special regulation, it simultaneously created a more lenient ("reasonably necessary") test for standards generally, and that once that more lenient test was applicable, it somehow superseded the strict requirements for toxic substances. That reasoning is both illogical and circular. Nor is there any basis for the plurality's suggestion, see ante, at 649, n. 54, that the original bill's application to all standards was "entirely inadvertent."
395[114] The plurality suggests that it is for the agency "to determine, in the first instance, what it considers to be a `significant' risk," and that the agency "is free to use conservative assumptions in interpreting the data. . . ." Ante, at 655, 656. Moreover, my Brother POWELL would not require "quantification of risk in every case." Ante, at 666 (opinion concurring in part and concurring in judgment). As I read his opinion, MR. JUSTICE POWELL would have permitted the Secretary to promulgate the standard at issue here if the Secretary had provided a more carefully reasoned explanation of his conclusion that the risk at issue justified the admittedly significant costs of the benzene standard. MR. JUSTICE POWELL also suggests that such a conclusion would be subject to relatively deferential review. Ante, at 670-671, n. 8.
396In this respect, the differences between my approach and that of MR. JUSTICE POWELL may be comparatively narrow. We are agreed on two propositions that I regard as critical to a fairminded interpretation of the Act: (1) the Secretary may regulate risks that are not subject to quantification on the basis of the "best available evidence"; and (2) the Secretary's judgment that a particular health risk merits regulatory action is subject to limited judicial scrutiny. It is encouraging that at least five Members of the Court accept these basic propositions.
397For reasons stated in the text, however, I disagree with my Brother POWELL'S conclusion that it is appropriate to hold in these cases that the Act requires the Secretary to show a reasonable relationship between costs and benefits.
398[115] Finding obscurity in the word "feasible," my Brother REHNQUIST invokes the nondelegation doctrine, which was last used to invalidate an Act of Congress in 1935. A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495 (1935). While my Brother REHNQUIST eloquently argues that there remains a place for such a doctrine in our jurisprudence, I am frankly puzzled as to why the issue is thought to be of any relevance here. The nondelegation doctrine is designed to assure that the most fundamental decisions will be made by Congress, the elected representatives of the people, rather than by administrators. Some minimal definiteness is therefore required in order for Congress to delegate its authority to administrative agencies.
399Congress has been sufficiently definite here. The word "feasible" has a reasonably plain meaning, and its interpretation can be informed by other contexts in which Congress has used it. See n. 27, supra. Since the term is placed in the same sentence with the "no employee will suffer" language, it is clear that "feasible" means technologically and economically achievable. Under the Act, the Secretary is afforded considerably more guidance than are other administrators acting under different regulatory statutes. In short, Congress has made "the critical policy decisions" in these cases, see ante, at 687 (REHNQUIST, J., concurring in judgment).
400The plurality's apparent suggestion, see ante, at 646, that the nondelegation doctrine might be violated if the Secretary were permitted to regulate definite but nonquantifiable risks is plainly wrong. Such a statute would be quite definite and would thus raise no constitutional question under Schechter Poultry. Moreover, Congress could rationally decide that it would be better to require industry to bear "feasible" costs than to subject American workers to an indeterminate risk of cancer and other fatal diseases.
401[116] See n. 27, supra.
402[117] Congress' antipathy toward cost-benefit balancing is evident throughout the legislative history of the Act. For example:
403404"The costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business. Whether we as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite." 116 Cong. Rec. 41766 (1970), Leg. Hist. 1150-1151 (Sen. Eagleton).
Similarly, Senator Yarborough stated:
405406"We are talking about people's lives, not the indifference of some cost accountants. We are talking about assuring the men and women who work in our plants and factories that they will go home after a day's work with their bodies intact. We are talking about assuring our American workers who wo[r]k with deadly chemicals that when they have accumulated a few year's seniority they will not have accumulated lung congestion and poison in their bodies, or something that will strike them down before they reach retirement age." 116 Cong. Rec., at 37625, Leg. Hist. 510.
[118] Nor need I discuss the possibility, raised by counsel for the federal parties in oral argument, that a decision to regulate a substance posing a negligible threat to health and safety could itself be challenged as arbitrary and capricious under the Administrative Procedure Act. See Tr. of Oral Arg. 23.
407[119] Respondents also rely on the statutory requirement that the Secretary may act only to prevent "material" impairment. They contend that the standard promulgated here does not fall within that category because the risk is so low. This interpretation derives no support from the statute or its legislative history. The statute itself states that standards should ensure that no employee will suffer "material impairment," not material risk of impairment.
408The language is consistent with the legislative history. In an early version of the Act, the word "impairment" was modified by "any" rather than "material." See n. 8, supra. The feasibility and materiality requirements were added simultaneously as part of an effort to qualify the original language authorizing the Secretary to ensure that "no employee will suffer any impairment of health or functional capacity, or diminished life expectancy." Senator Dominick was concerned that the phrase "any" impairment would require the Secretary to prevent insect bites. 116 Cong. Rec. 36522 (1970), Leg. Hist. 345.
409The respondents' construction would pose an enormous obstacle to efforts to regulate toxic substances under § 655 (b) (5). The probability of contracting cancer will in most contexts be quite small with respect to any particular employee. If the statute were read to authorize the Secretary to act only to assure that "no employee will suffer material risk of impairment," the Secretary would be disabled from regulating substances which poses a small risk with respect to any particular employee but which will nonetheless result in the death of numerous members of the employee pool.
410[120] Although the Court of Appeals accepted the Secretary's finding that dermal contact with benzene could cause leukemia, it set aside the dermal contact standard because of the Secretary's failure to perform an experiment recommended by an industry witness. The failure to conduct this test, according to the court, violated the statutory requirement that the Secretary act on the basis of "the best available evidence" and "the latest available scientific data in the field."
411In the hearings before the agency, respondents presented no substantial challenge to the position that benzene could be absorbed through the skin, and there was evidence in the record to support that position. Both animal and human studies had found such absorption. In these circumstances, the Secretary was not obligated to undertake additional studies simply because a witness testified that such studies would be informative. The imposition of such a requirement would paralyze the standard-setting process. The Secretary's mandate is to act on the basis of "available" evidence, not evidence which may become available in the future.
412In setting aside the dermal contact standard, the Court of Appeals also relied on its conclusion that the Secretary had not shown that quantifiable benefits would result from the standard. As the discussion above indicates, the court applied incorrect legal standards in so holding.
413[121] See W. Lowrance, Of Acceptable Risk: Science and the Determination of Safety (1976); Stewart, Paradoxes of Liberty, Integrity and Fraternity: The Collective Nature of Environmental Quality and Judicial Review of Administrative Action, 7 Environ. L. 463, 469-472 (1977).
276 U.S. 394 (1928)
2No. 242.
Supreme Court of United States.
Argued March 1, 1928.
Decided April 9, 1928.
CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS.
5[395] Mr. Walter E. Hampton for petitioner.
6J.W. Hampton, Jr., & Company made an importation into New York of barium dioxide, which the collector of customs assessed at the dutiable rate of six cents per pound. This was two cents per pound more than that fixed by statute, par. 12, ch. 356, 42 Stat. 858, 860. The rate was raised by the collector by virtue of the proclamation of the President, 45 Treas. Dec. 669, T.D. 40216, issued under, and by authority of, § 315 of Title III of the Tariff Act of September 21, 1922, ch. 356, 42 Stat. 858, 941, which is the so-called flexible tariff provision. Protest was made and an appeal was taken under § 514, Part 3, Title IV, ch. 356, 42 Stat. 969-70. The case came on for hearing before the United States Customs Court, 49 Treas. Dec. 593. A majority held the Act constitutional. Thereafter the case was appealed to the United States Court of Customs Appeals. On the 16th day of October, 1926, the Attorney General certified that in his opinion the case was of such importance as to render expedient its review by this Court. Thereafter the judgment of the United States Customs Court was affirmed. [401] 14 Ct. Cust. App. 350. On a petition to this Court for certiorari, filed May 10, 1927, the writ was granted, 274 U.S. 735. The pertinent parts of § 315 of Title III of the Tariff Act, ch. 356, 42 Stat. 858, 941 U.S.C., Tit. 19, §§ 154, 156, are as follows:
8"Section 315(a). That in order to regulate the foreign commerce of the United States and to put into force and effect the policy of the Congress by this Act intended, whenever the President, upon investigation of the differences in costs of production of articles wholly or in part the growth or product of the United States and of like or similar articles wholly or in part the growth or product of competing foreign countries, shall find it thereby shown that the duties fixed in this Act do not equalize the said differences in costs of production in the United States and the principal competing country he shall, by such investigation, ascertain said differences and determine and proclaim the changes in classifications or increases or decreases in any rate of duty provided in this Act shown by said ascertained differences in such costs of production necessary to equalize the same. Thirty days after the date of such proclamation or proclamations, such changes in classification shall take effect, and such increased or decreased duties shall be levied, collected, and paid on such articles when imported from any foreign country into the United States or into any of its possessions (except the Philippine Islands, the Virgin Islands, and the islands of Guam and Tutuila): Provided, That the total increase or decrease of such rates of duty shall not exceed 50 per centum of the rates specified in Title I of this Act, or in any amendatory Act. . . .
9"(c). That in ascertaining the differences in costs of production, under the provisions of subdivisions (a) and (b) of this section, the President, in so far as he finds it practicable, shall take into consideration (1) the differences [402] in conditions in production, including wages, costs of material, and other items in costs of production of such or similar articles in the United States and in competing foreign countries; (2) the differences in the wholesale selling prices of domestic and foreign articles in the principal markets of the United States; (3) advantages granted to a foreign producer by a foreign government, or by a person, partnership, corporation, or association in a foreign country; and (4) any other advantages or disadvantages in competition.
10"Investigations to assist the President in ascertaining differences in costs of production under this section shall be made by the United States Tariff Commission, and no proclamation shall be issued under this section until such investigation shall have been made. The commission shall give reasonable public notice of its hearings and shall give reasonable opportunity to parties interested to be present, to produce evidence, and to be heard. The commission is authorized to adopt such reasonable procedure, rules, and regulations as it may deem necessary.
11"The President, proceeding as hereinbefore provided for in proclaiming rates of duty, shall, when he determines that it is shown that the differences in costs of production have changed or no longer exist which led to such proclamation, accordingly as so shown, modify or terminate the same. Nothing in this section shall be construed to authorize a transfer of an article from the dutiable list to the free list or from the free list to the dutiable list, nor a change in form of duty. Whenever it is provided in any paragraph of Title I of this Act, that the duty or duties shall not exceed a specified ad valorem rate upon the articles provided for in such paragraph, no rate determined under the provision of this section upon such articles shall exceed the maximum ad valorem rate so specified."
12[403] The President issued his proclamation May 19, 1924. After reciting part of the foregoing from § 315, the proclamation continued as follows:
13"Whereas, under and by virtue of said section of said act, the United States Tariff Commission has made an investigation to assist the President in ascertaining the differences in costs of production of and of all other facts and conditions enumerated in said section with respect to . . . barium dioxide, . . .
14"Whereas in the course of said investigation a hearing was held, of which reasonable public notice was given and at which parties interested were given a reasonable opportunity to be present, to produce evidence, and to be heard;
15"And whereas the President upon said investigation . . . has thereby found that the principal competing country is Germany, and that the duty fixed in said title and act does not equalize the differences in costs of production in the United States and in . . . Germany, and has ascertained and determined the increased rate of duty necessary to equalize the same.
16"Now, therefore, I, Calvin Coolidge, President of the United States of America, do hereby determine and proclaim that the increase in the rate of duty provided in said act shown by said ascertained differences in said costs of production necessary to equalize the same is as follows:
17"`An increase in said duty on barium dioxide (within the limit of total increase provided for in said act) from 4 cents per pound to 6 cents per pound.
18"`In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
19"`Done at the City of Washington this nineteenth day of May in the year of our Lord one thousand nine hundred and twenty-four, and of the Independence of the [404] United States of America the one hundred and forty-eighth.
20"`Calvin Coolidge.
21"`By the President: Charles E. Hughes, Secretary of State.'"
22The issue here is as to the constitutionality of § 315, upon which depends the authority for the proclamation of the President and for two of the six cents per pound duty collected from the petitioner. The contention of the taxpayers is two-fold — first, they argue that the section is invalid in that it is a delegation to the President of the legislative power, which by Article I, § 1 of the Constitution, is vested in Congress, the power being that declared in § 8 of Article I, that the Congress shall have power to lay and collect taxes, duties, imposts and excises. The second objection is that, as § 315 was enacted with the avowed intent and for the purpose of protecting the industries of the United States, it is invalid because the Constitution gives power to lay such taxes only for revenue.
23First. It seems clear what Congress intended by § 315. Its plan was to secure by law the imposition of customs duties on articles of imported merchandise which should equal the difference between the cost of producing in a foreign country the articles in question and laying them down for sale in the United States, and the cost of producing and selling like or similar articles in the United States, so that the duties not only secure revenue but at the same time enable domestic producers to compete on terms of equality with foreign producers in the markets of the United States. It may be that it is difficult to fix with exactness this difference, but the difference which is sought in the statute is perfectly clear and perfectly intelligible. Because of the difficulty in practically determining what that difference is, Congress seems to have [405] doubted that the information in its possession was such as to enable it to make the adjustment accurately, and also to have apprehended that with changing conditions the difference might vary in such a way that some readjustments would be necessary to give effect to the principle on which the statute proceeds. To avoid such difficulties, Congress adopted in § 315 the method of describing with clearness what its policy and plan was and then authorizing a member of the executive branch to carry out this policy and plan, and to find the changing difference from time to time, and to make the adjustments necessary to conform the duties to the standard underlying that policy and plan. As it was a matter of great importance, it concluded to give by statute to the President, the chief of the executive branch, the function of determining the difference as it might vary. He was provided with a body of investigators who were to assist him in obtaining needed data and ascertaining the facts justifying readjustments. There was no specific provision by which action by the President might be invoked under this Act, but it was presumed that the President would through this body of advisers keep himself advised of the necessity for investigation or change, and then would proceed to pursue his duties under the Act and reach such conclusion as he might find justified by the investigation, and proclaim the same if necessary.
24The Tariff Commission does not itself fix duties, but before the President reaches a conclusion on the subject of investigation, the Tariff Commission must make an investigation and in doing so must give notice to all parties interested and an opportunity to adduce evidence and to be heard.
25The well-known maxim "Delegata potestas non potest delegari," applicable to the law of agency in the general and common law, is well understood and has had wider [406] application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. The first is the legislative, the second is the executive, and the third is the judicial, and the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.
26The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations. United States v. Grimaud, 220 U.S. 506, 518; Union Bridge Co. v. United States, 204 U.S. 364; Buttfield v. [407] Stranahan, 192 U.S. 470; In re Kollock, 165 U.S. 526; Oceanic Navigation Co. v. Stranahan, 214 U.S. 320.
27Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive, or, as often happens in matters of state legislation, it may be left to a popular vote of the residents of a district to be effected by the legislation. While in a sense one may say that such residents are exercising legislative power, it is not an exact statement, because the power has already been exercised legislatively by the body vested with that power under the Constitution, the condition of its legislation going into effect being made dependent by the legislature on the expression of the voters of a certain district. As Judge Ranney of the Ohio Supreme Court in Cincinnati, Wilmington and Zanesville Railroad Co. v. Commissioners, 1 Ohio St. 77, 88, said in such a case:
28"The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." See also Moers v. Reading, 21 Penn. St. 188, 202; Locke's Appeal, 72 Penn. St. 491, 498.
29Again, one of the great functions conferred on Congress by the Federal Constitution is the regulation of interstate commerce and rates to be exacted by interstate carriers for the passenger and merchandise traffic. The rates to be fixed are myriad. If Congress were to be required to fix every rate, it would be impossible to exercise the power at all. Therefore, common sense requires that in the fixing of such rates, Congress may provide a Commission, [408] as it does, called the Interstate Commerce Commission, to fix those rates, after hearing evidence and argument concerning them from interested parties, all in accord with a general rule that Congress first lays down, that rates shall be just and reasonable considering the service given, and not discriminatory. As said by this Court in Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 214, "The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress."
30The principle upon which such a power is upheld in state legislation as to fixing railway rates is admirably stated by Judge Mitchell, in the case of State v. Chicago, Milwaukee & St. Paul Railway Company, 38 Minn. 281, 298 to 302. The learned Judge says on page 301:
31"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. . . . Our legislature has gone a step further than most others, and vested our commission with full power to determine what rates are equal and reasonable in each particular case. Whether this was wise or not is not for us to say; but in doing so we can not see that they have transcended their constitutional authority. They have not delegated to the commission any authority or discretion as to what the law [409] shall be, — which would not be allowable, — but have merely conferred upon it an authority and discretion, to be exercised in the execution of the law, and under and in pursuance of it, which is entirely permissible. The legislature itself has passed upon the expediency of the law, and what it shall be. The commission is intrusted with no authority or discretion upon these questions." See also the language of Justices Miller and Bradley in the same case in this Court. 134 U.S. 418, 459, 461, 464.
32It is conceded by counsel that Congress may use executive officers in the application and enforcement of a policy declared in law by Congress, and authorize such officers in the application of the Congressional declaration to enforce it by regulation equivalent to law. But it is said that this never has been permitted to be done where Congress has exercised the power to levy taxes and fix customs duties. The authorities make no such distinction. The same principle that permits Congress to exercise its rate making power in interstate commerce, by declaring the rule which shall prevail in the legislative fixing of rates, and enables it to remit to a rate-making body created in accordance with its provisions the fixing of such rates, justifies a similar provision for the fixing of customs duties on imported merchandise. If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under Congressional authority. This conclusion is amply sustained by a case in which there was no advisory commission [410] furnished the President — a case to which this Court gave the fullest consideration nearly forty years ago. In Field v. Clark, 143 U.S. 649, 680, the third section of the Act of October 1, 1890, contained this provision:
33"That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninety-two, whenever, and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected, and paid upon sugar, molasses, coffee, tea and hides, the product of or exported from such designated country as follows, namely:"
34Then followed certain rates of duty to be imposed. It was contended that this section delegated to the President both legislative and treaty-making powers and was unconstitutional. After an examination of all the authorities, the Court said that while Congress could not delegate legislative power to the President, this Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President; that the legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What [411] the President was required to do was merely in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.
35Second. The second objection to § 315 is that the declared plan of Congress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country's industries by the importation of goods from other countries at too low a rate to equalize foreign and domestic competition in the markets of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that of revenue raising. It undoubtedly is true that during the political life of this country there has been much discussion between parties as to the wisdom of the policy of protection, and we may go further and say as to its constitutionality, but no historian, whatever his view of the wisdom of the policy of protection, would contend that Congress, since the first revenue Act, in 1789, has not assumed that it was within its power in making provision for the collection of revenue, to put taxes upon importations and to vary the subjects of such taxes or rates in an effort to encourage the growth of the industries of the Nation by protecting home production against foreign competition. It is enough to point out that the second act adopted by the Congress of the United States, July 4, 1789, ch. 2, 1 Stat. 24, contained the following recital.
36"SEC. 1. Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, [412] that duties be laid on goods, wares and merchandises imported: Be it enacted, etc."
37In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions. Myers v. United States, 272 U.S. 52, 175, and cases cited. The enactment and enforcement of a number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are matters of history.
38More than a hundred years later, the titles of the Tariff Acts of 1897 and 1909 declared the purpose of those acts, among other things, to be that of encouraging the industries of the United States. The title of the Tariff Act of 1922, of which § 315 is a part, is "An Act to provide revenue, to regulate commerce with foreign countries, to encourage the industries of the United States and for other purposes." Whatever we may think of the wisdom of a protection policy, we can not hold it unconstitutional.
39So long as the motive of Congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subjects of taxes can not invalidate Congressional action. As we said in the Child Labor Tax Case, 259 U.S. 20, 38: "Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them, and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive." [413] And so here, the fact that Congress declares that one of its motives in fixing the rates of duty is so to fix them that they shall encourage the industries of this country in the competition with producers in other countries in the sale of goods in this country, can not invalidate a revenue act so framed. Section 315 and its provisions are within the power of Congress. The judgment of the Court of Customs Appeals is affirmed.
40Affirmed.
v.
RYAN et al. AMAZON PETROLEUM CORPORATION et al. v. SAME.
[Syllabus from pages 388-390 intentionally omitted]
17Page 391
19Messrs. J. N. Saye, of Longview, Tex., and F. W. Fischer, of Tyler, Tex., for petitioners.
21[Argument of Counsel from pages 391-398 intentionally omitted]
23Page 398
25Mr. Harold M. Stephens, Asst. Atty. Gen., for respondents.
27[Argument of Counsel from pages 398-405 intentionally omitted]
29Page 405
31Mr. Chief Justice HUGHES delivered the opinion of the Court.
33On July 11, 1933, the President, by Executive Order No. 6199 (15 USCA § 709 note), prohibited '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 from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly
35Page 406
37authorized agency of a State.'1 This action was based on section 9(c) of title 1 of the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, 200, 15 U.S.C. tit. 1, § 709(c), 15 USCA § 709(c). That section provides:
39'Sec. 9. * * *
41'(c) The President is authorized 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 from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State. Any violation of any order of the President issued under the provisions of this subsection shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both.'
43On July 14, 1933, the President, by Executive Order No. 6204 (15 USCA § 709 note), authorized the Secretary of the Interior to exercise all the powers vested in the President 'for the purpose of en-
45Page 407
47forcing Section 9(c) of said act and said order' of July 11, 1933, 'including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary.'2 That order was made under section 10(a) of the National Industrial Recovery Act, 48 Stat. 200, 15 U.S.C. § 710(a), 15 USCA § 710(a), authorizing the President 'to prescribe such rules and regulations as may be necessary to carry out the purposes' of title 1 of the National Industrial Recovery Act and providing that 'any violation of any such rule or regulation shall be punishable by fine of not to exceed $500, or imprisonment for not to exceed six months, or both.'
49On July 15, 1933, the Secretary of the Interior issued regulations to carry out the President's orders of July 11 and 14, 1933. These regulations were amended by orders
51Page 408
53of July 25, 1933, and August 21, 1933, prior to the commencement of these suits. Regulation IV provided, in substance, that every producer of petroleum should file a monthly statement under oath, beginning August 15, 1933, with the Division of Investigations of the Department of the Interior giving information with respect to the residence and post office address of the producer, the location of his producing properties and wells, the allowable production as prescribed by state authority, the amount of daily production, all deliveries of petroleum, and declaring that no part of the petroleum or products produced and shipped had been produced or withdrawn from storage in excess of the amount permitted by state authority. Regulation V required every purchaser, shipper (other than a producer), and refiner of petroleum, including processors, similarly to file a monthly statement under oath, giving information as to residence and post office address, the place and date of receipt, the parties from whom and the amount of petroleum received and the amount held in storage, the disposition of the petroleum, particulars as to deliveries, and declaring, to the best of the affiant's information and belief, that none of the petroleum so handled had been produced or withdrawn from storage in excess of that allowed by state authority. Regulation VII provided that all persons embraced within the terms of section 9(c) of the act, 15 USCA § 709(a) and the executive orders and regulations issued thereunder, should keep 'available for inspection by the Division of Investigations of the Department of the Interior adequate books and records of all transactions involving the production and transportation of petroleum and the products thereof.'
55On August 19, 1933, the President, by Executive Order No. 6256, stating that his action was taken under title 1 of the National Industrial Recovery Act, approved a 'Code of
57Page 409
59Fair Competition for the Petroleum Industry.'3 By a further Executive Order of August 28, 1933, the President designated the Secretary of the Interior as Administrator, and the Department of the Interior as the federal agency, to exercise on behalf of the President all the powers vested in him under that act and code. Section 3(f) of title 1 of the National Industrial Recovery Act, 15 USCA § 703(f), provides that, when a code of fair competition has been approved or prescribed by the President under that title, 'any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall
61Page 410
63be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense.'
65This 'Petroleum Code' (in its original form and as officially printed) provided in section 3 of article III relating to 'Production' for estimates of 'required production of crude oil to balance consumer demand for petroleum products' to be made at intervals by the federal agency. This 'required production' was to be 'equitably allocated' among the several states. These estimates and allocations, when approved by the President, were to be deemed to be 'the net reasonable market demand,' and the allocations were to be recommended 'as the operating schedules for the producing States and for the industry.' By section 4 of article III, the subdivision, with respect to producing properties, of the production allocated to each state, was to be made within the state. The second paragraph of that section further provided:
67'If any subdivision into quotas of production allocated to any State shall be made within a State any production by any person, as person is defined in Article I, Section 3 of this code in excess of any such quota assigned to him, shall be deemed an unfair trade practice and in violation of this code.'
69By an Executive Order of September 13, 1933, No. 6284-a, modifying certain provisions of the Petroleum Code, this second paragraph of section 4 of article III was eliminated. It was reinstated by Executive Order of September 25, 1934, No. 6855.
71These suits were brought in October, 1933.
73In No. 135, the Panama Refining Company, as owner of an oil refining plant in Texas, and its coplaintiff, a producer having oil and gas leases in Texas, sued to restrain the defendants, who were federal officials, from enforcing Regulations IV, V, and VII prescribed by the Secretary of the Interior under section 9(c) of the National Industrial
75Page 411
77Recovery Act. Plaintiffs attacked the validity of section 9(c) as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under the commerce clause. The regulations, and the attempts to enforce them by coming upon the properties of the plaintiffs, gauging their tanks, digging up pipe lines, and otherwise, were also assailed under the Fourth and Fifth Amendments of the Constitution.
79In No. 260, the Amazon Petroleum Corporation and its coplaintiffs, all being oil producers in Texas and owning separate properties, sued to enjoin the Railroad Commission of that state, its members and other state officers, and the other defendants who were federal officials, from enforcing the state and federal restrictions upon the production and disposition of oil. The bill alleged that the legislation of the state and the orders of its commission in curtailing production violated the Fourteenth Amendment of the Federal Constitution. As to the federal requirements, the bill not only attacked section 9(c) of the National Industrial Recovery Act, and the regulations of the Secretary of the Interior thereunder, upon substantially the same grounds as those set forth in the bill of the Panama Refining Company, but also challenged the validity of provisions of the Petroleum Code. While a number of these provisions were set out in the bill, the contest on the trial related to the limitation of production through the allocation of quotas pursuant to section 4 of article III of the code.
81As the case involved the constitutional validity of orders of the state commission and an interlocutory injunction was sought, a court of three judges was convened under section 266 of the Judicial Code (28 U.S.C. § 380 (28 USCA § 380)). That court decided that the cause of action against the federal officials was not one within section 266, but was for the consideration of the District Judge alone. The parties agreed that the causes of action should be severed and that each cause
83Page 412
85should be submitted to the tribunal having jurisdiction of it. Hearing was had both on the applications for interlocutory injunction and upon the merits. The court of three judges, sustaining the state orders, denied injunction, and dismissed the bill as against the state authorities. Amazon Petroleum Corp. v. Railroad Comm. (D.C.) 5 F.Supp. 633, 634, 639.
87In both cases against the federal officials, that of the Panama Refining Company and that of the Amazon Petroleum Corporation, heard by the District Judge, a permanent injunction was granted. 5 F.Supp. 639. In the case of the Amazon Petroleum Corporation, the court specifically enjoined the defendants from enforcing section 4 of article III of the Petroleum Code; both plaintiffs and defendants and the court being unaware of the amendment of September 13, 1933.
89The Circuit Court of Appeals reversed the decrees against the federal officials and directed that the bills be dismissed. Ryan v. Amazon Petroleum Corp., 71 F.(2d) 1; Ryan v. Panama Refining Co., 71 F.(2d) 8. The cases come here on writs of certiorari granted on October 8, 1934, 293 U.S. 539, 55 S.Ct. 102, 79 L.Ed. -; 293 U.S. 539, 55 S.Ct. 83, 79 L.Ed. —-.
91First. The controversy with respect to the provision of section 4 of article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist. The government's announcement that, by reason of the elimination of this paragraph, the government 'cannot, and therefore it does not intend to, prosecute petitioners or other producers of oil in Texas, criminally or otherwise,
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95for exceeding, at any time prior to September 25, 1934, the quotas of production assigned to them under the laws of Texas,' but that, if 'petitioners, or other producers, produce in excess of such quotas after September 25, 1934, the government intends to prosecute them,' cannot avail to import into the present case the amended provision of that date.4 The case is not one where a subsequent law is applicable to a pending suit and controls its disposition.5 When this suit was brought and when it was heard, there was no cause of action for the injunction sought with respect to the provision of section 4 of article III of the code; as to that, there was no basis for real controversy. See California v. San Pablo & T.R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747; United States v. Alaska Steamship Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808; Barker Painting Co. v. Local No. 734, Brotherhood of Painters, etc., 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967. If the government undertakes to enforce the new provision, the petitioners, as well as others, will have an opportunity to present their grievance, which can then be considered, as it should be, in the light of the facts as they will then appear.
97For this reason, we pass to the other questions presented, and we express no opinion as to the interpretation or validity of the provisions of the Petroleum Code.
99Second. Regulations IV, V, and VII, issued by the Secretary of the Interior prior to these suits, have since been amended. But the amended regulations continue sub-
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103stantially the earlier requirements and expand them. They present the same constitutional questions, and the cases as to these are not moot. Southern Pacific Company v. Interstate Commerce Commission, 219 U.S. 433, 452, 31 S.Ct. 288, 55 L.Ed. 283; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514—516, 31 S.Ct. 279, 55 L.Ed. 310; McGrain v. Daugherty, 273 U.S. 135, 181, 182, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1.
105The original regulations of July 15, 1933, as amended July 25, 1933, and August 21, 1933, were issued to enforce the Executive Orders of July 11 and July 14, 1933. The Executive Order of July 11, 1933, was made under section 9(c) of the National Industrial Recovery Act, and the Executive Order of July 14, 1933, under section 10(a) of that act, authorizing the Secretary of the Interior to promulgate regulations, was for the purpose of enforcing section 9(c) and the Executive Order of July 11, 1933. The amended regulations have been issued for the same purpose. The fundamental question as to these regulations thus turns upon the validity of section 9(c) and the executive orders to carry it out.
107Third. The statute provides that any violation of any order of the President issued under section 9(c) shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both. We think that these penalties would attach to each violation, and in this view the plaintiffs were entitled to invoke the equitable jurisdiction to restrain enforcement, if the statute and the executive orders were found to be invalid. Philadelphia Company v. Stimson, 223 U.S. 605, 620, 621, 32 S.Ct. 340, 56 L.Ed. 570; Terrace v. Thompson, 263 U.S. 197, 214—216, 44 S.Ct. 15, 68 L.Ed. 255; Hygrade Provision Company v. Sherman, 266 U.S. 497, 499, 500, 45 S.Ct. 141, 69 L.Ed. 402.
109Fourth. Section 9[c] is assailed upon the ground that it is an unconstitutional delegation of legislative power. The section purports to authorize the President to pass a prohibitory law. The subject to which this authority relates is defined. It is the transportation in interstate and
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113foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. Assuming for the present purpose, without deciding, that the Congress has power to interdict the transportation of that excess in interstate and foreign commerce, the question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President's action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.
115Section 9(c) is brief and unambiguous. It does not attempt to control the production of petroleum and petroleum products within a state. It does not seek to lay down rules for the guidance of state Legislatures or state officers. It leaves to the states and to their constituted authorities the determination of what production shall be permitted. It does not qualify the President's authority by reference to the basis or extent of the state's limitation of production. Section 9(c) does not state whether or in what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the state's permission. It establishes no creterion to govern the President's course. It does not require any finding by the President as a condition of his action. The Congress in section 9(c) thus declares no policy as to the transportation of the excess production. So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment.
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119We examine the context to ascertain if it furnishes a declaration of policy or a standard of action, which can be deemed to relate to the subject of section 9(c) and thus to imply what is not there expressed. It is important to note that section 9 (15 USCA § 709) is headed 'Oil Regulation'—that is, section 9 is the part of the National Industrial Recovery Act which particularly deals with that subject-matter. But the other provisions of section 9 afford no ground for implying a limitation of the broad grant of authority in section 9(c). Thus section 9(a) authorizes the President to initiate before the Interstate Commerce Commission 'proceedings necessary to prescribe regulations to control the operations of oil pipe lines and to fix reasonable, compensatory rates for the transportation of petroleum and its products by pipe lines,' and the Interstate Commerce Commission is to grant preference 'to the hearings and determination of such cases.' Section 9(b) authorizes the President to institute proceedings 'to divorce from any holding company any pipe-line company controlled by such holding company which pipeline company by unfair practices or by exorbitant rates in the transportation of petroleum or its products tends to create a monopoly.' It will be observed that each of these provisions contains restrictive clauses as to their respective subjects. Neither relates to the subject of section 9(c).
121We turn to the other provisions of title 1 of the act. The first section (15 USCA § 701) is a 'declaration of policy.'6 It declares that a national emergency exists which is 'pro-
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125ductive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people.' It is declared to be the policy of Congress 'to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof;' 'to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups;' 'to induce and maintain united action of labor and management under adequate governmental sanctions and supervision;' 'to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'
127This general outline of policy contains nothing as to the circumstances or conditions in which transportation of petroleum or petroleum products should be prohibited—nothing as to the policy of prohibiting or not prohibiting the transportation of production exceeding what the
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131states allow. The general policy declared is 'to remove obstructions to the free flow of interstate and foreign commerce.' As to production, the section lays down no policy of limitation. It favors the fullest possible utilization of the present productive capacity of industries. It speaks, parenthetically, of a possible temporary restriction of production, but of what, or in what circumstances, it gives no suggestion. The section also speaks in general terms of the conservation of natural resources, but it prescribes no policy for the achievement of that end. It is manifest that this broad outline is simply an introduction of the act, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by the subsequent sections.
133It is no answer to insist that deleterious consequences follow the transportation of 'hot oil'—oil exceeding state allowances. The Congress did not prohibit that transportation. The Congress did not undertake to say that the transportation of 'hot oil' was injurious. The Congress did not say that transportation of that oil was 'unfair competition.' The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a Legislature rather than those of an executive or administrative
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137officer executing a declared legislative policy. We find nothing in section 1 which limits or controls the authority conferred by section 9(c).
139We pass to the other sections of the act. Section 2 (15 USCA § 702) relates to administrative agencies which may be constituted. Section 3 (15 USCA § 703) provides for the approval by the President of 'codes' for trades or industries. These are to be codes of 'fair competition' and the authority is based upon certain express conditions which require findings by the President. Action under section 9(c) is not made to depend on the formulation of a code under section 3. In fact, the President's action under section 9(c) was taken more than a month before a Petroleum Code was approved. Subdivision (e) of section 3 (15 USCA § 703(e) authorizes the President, on his own motion or upon complaint, as stated, in case any article is being imported into the United States 'in substantial quantities or increasing ratio to domestic production of any competitive article,' under such conditions as to endanger the maintenance of a code or agreement under title 1, to cause an immediate investigation by the Tariff Commission. The authority of the President to act, after such investigation, is conditioned upon a finding by him of the existence of the underlying facts, and he may permit entry of the articles concerned upon such conditions and with such limitations as he shall find it necessary to prescribe in order that the entry shall not tend to render the code or agreement ineffective. Section 4 (15 USCA § 704) relates to agreements and licenses for the purposes stated. Section 5 (15 USCA § 705) refers to the application of the anti-trust laws. Sections 6 and 7 (15 USCA §§ 706, 707) impose limitations upon the application of title 1, bearing upon trade associations and other organizations and upon the relations between employers and employees. Section 8 (15 USCA § 708), contains provisions with respect to the application of the Agricultural Adjustment Act of May 12, 1933 (7 USCA § 601 et seq.).
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143None of these provisions can be deemed to prescribe any limitation of the grant of authority in section 9(c).
145Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by section 9(c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee. The Congress may vest the power in the officer of its choice or in a board or commission such as it may select or create for the purpose. Nor, with respect to such a delegation, is the question concerned merely with the transportation of oil, or of oil produced in excess of what the state may allow. If legislative power may thus be vested in the President or other grantee as to that excess of production, we see no reason to doubt that it may similarly be vested with respect to the transportation of oil without reference to the state's requirements. That reference simply defines the subject of the prohibition which the President is authorized to enact or not to enact as he pleases. And, if that legislative power may be given to the President or other grantee, it would seem to follow that such power may similarly be conferred with respect to the transportation of other commodities in interstate commerce with or without reference to state action, thus giving to the grantee of the power the determination of what is a wise policy as to that transportation, and authority to permit or prohibit it, as the person or board or commission so chosen may
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149think desirable. In that view, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation.
151The Constitution provides that 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, § 1. And the Congress is empowered 'To make all Laws which shall be necessary and proper for carrying into Execution' its general powers. Article 1, § 8, par. 18. The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.
153The Court has had frequent occasion to refer to these limitations and to review the course of congressional action. At the very outset, amid the disturbances due to war in Europe, when the national safety was imperiled
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157and our neutrality was disregarded, the Congress passed a series of acts, as a part of which the President was authorized, in stated circumstances, to lay and revoke embargoes, to give permits for the exportation of arms and military stores, to remit and discontinue the restraints and prohibitions imposed by acts suspending commercial intercourse with certain countries, and to permit or interdict the entrance into waters of the United States of armed vessels belonging to foreign nations.7 These early acts were not the subject of judicial decision, and, apart from that, they afford no adequate basis for a conclusion that the Congress assumed that it possessed an unqualified power of delegation. They were inspired by the vexations of American commerce through the hostile enterprises of the belligerent powers,8 they were directed to the effective execution of policies repeatedly declared by the Congress, and they confided to the President, for the purposes and under the conditions stated, an authority which was cognate to the conduct by him of the foreign relations of the government.9
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161The first case relating to an authorization of this description was that of The Aurora v. United States, 7 Cranch, 382, 388, 3 L.Ed. 378. The cargo of that vessel had been condemned as having been imported from Great Britain in violation of the Nonintercourse Act of March 1, 1809 (2 Stat. 528). That act expired on May 1, 1810,10 when Congress passed another
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165act (2 Stat. 605, 606) providing that, in case either Great Britain or France before March 3, 1811, 'shall * * * so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not within three months thereafter so revoke or modify her edicts in like manner' (section 4), then, with respect to that nation, as stated, the provisions of the act of 1809, after three months from that proclamation, 'shall * * * be revived and have full force and effect.' On November 2, 1810, the President issued his proclamation declaring that France had so revoked or modified her edicts, and it was contended that the provisions of the act of 1809, as to the cargo in question, had thus been revived. The Court said that it could see no sufficient reason why the Legislature should not exercise its discretion in reviving the act of 1809, 'either expressly or conditionally, as their judgment should direct.' The provision of that act declaring 'that it should continue in force to a certain time, and no longer,' could not restrict the power of the Legislature to extend its operation 'without limitation upon the occurrence of any subsequent combination of events.' This was a decision, said the Court in Field v. Clark, 143 U.S. 649, 683, 12 S.Ct. 495, 501, 36 L.Ed. 294, 'that it was competent for congress to make the revival of an act depend upon the proclamation of the president, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States.'
167In Field v. Clark, supra, the Court applied that ruling to the case of 'the suspension of an act upon a contingency to be ascertained by the president, and made known by his proclamation.' The Court was dealing with section 3 of the Act of October 1, 1890, 26 Stat. 567, 612.
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171That section provided that, 'with a view to secure reciprocal trade' with countries producing certain articles, 'whenever, and so often as the President shall be satisfied' that the government of any country producing them imposed 'duties or other exactions upon the agricultural or other products of the United States' which, in view of the free list established by the act, the President 'may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty,' to suspend the free introduction of those articles by proclamation to that effect, and that during that suspension the duties specified by the section should be levied. The validity of the provision was challenged as a delegation to the President of legislative power. The Court reviewed the early acts to which we have referred, as well as later statutes considered to be analogous.11 While sustaining the provision, the Court emphatically declared that the principle that 'congress cannot delegate legislative power to the president' is 'universally
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175recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.' The Court found that the act before it was not inconsistent with that principle; that it did not 'in any real sense, invest the president with the power of legislation.' As 'the suspension was absolutely required when the president ascertained the existence of a particular fact,' it could not be said 'that in ascertaining that fact, and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws.' 'He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.' Id., pages 692, 693 of 143 U.S., 12 S.Ct. 495, 504, 505. The Court referred with approval to the distinction pointed out by the Supreme Court of Ohio in Cincinnati, Wilmington, etc., Railroad v. Clinton County Commissioners, 1 Ohio St. 88, between 'the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.'
177Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed have constantly been sustained. Moreover the Congress may not only give such authorizations to determine specific facts, but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy; that is, as Chief Justice Marshall expressed it, 'to fill up the details' under the general provisions made by the Legislature. Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253. In Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 352, 48 L.Ed. 525, the Act of March 2, 1897 (29 Stat. 604, 605, § 3 (see 21 USCA § 43)), was upheld, which authorized the Secretary of the Treasury, upon the recommendation of a board of experts, to 'establish uniform standards of purity, quality, and fitness
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181for consumption of all kinds of teas imported into the United States.' The Court construed the statute as expressing 'the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality.' The Congress, the Court said, thus fixed 'a primary standard' and committed to the Secretary of the Treasury 'the mere executive duty to effectuate the legislative policy declared in the statute.' 'Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute.' See Red 'C' Oil Co. v. Board of Agriculture of North Carolina, 222 U.S. 380, 394, 32 S.Ct. 152, 56 L.Ed. 240.
183Another notable illustration is that of the authority given to the Secretary of War to determine whether bridges and other structures constitute unreasonable obstructions to navigation and to remove such obstructions. Act of March 3, 1899, § 18, 30 Stat. 1153, 1154 (33 USCA § 502). By that statute the Congress declared 'a general rule and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule' as thus laid down. Union Bridge Co. v. United States, 204 U.S. 364, 386, 27 S.Ct. 367, 51 L.Ed. 523; Monongahela Bridge Co. v. United States, 216 U.S. 177, 193, 30 S.Ct. 356, 54 L.Ed. 435; Philadelphia Co. v. Stimson, 223 U.S. 605, 638, 32 S.Ct. 340, 56 L.Ed. 570. Upon this principle rests the authority of the Interstate Commerce Commission, in the execution of the declared policy of the Congress in enforcing reasonable rates, in preventing undue preferences and unjust discriminations, in requiring suitable facilities for transportation in interstate commerce, and in exercising other powers held to have been validly conferred. St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 287, 28 S.Ct. 616, 52 L.Ed. 1061; Inter-Mountain Rate Cases, 234 U.S. 476, 486, 34 S.Ct. 986, 58 L.Ed. 1408; Avent v. United States, 266 U.S. 127, 130, 45 S.Ct. 34, 69 L.Ed. 202; New York Central Securities Corporation
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187v. United States, 287 U.S. 12, 24, 25, 53 S.Ct. 45, 77 L.Ed. 138. Upon a similar ground the authority given to the President, in appropriate relation to his functions as Commander-in-Chief, by the Trading with the Enemy Act, as amended by the Act of March 28, 1918 (40 Stat. 460, § 12 (50 USCA Appendix § 12)), with respect to the disposition of enemy property, was sustained. 'The determination,' said the Court, 'of the terms of sales of enemy properties in the light of facts and conditions from time to time arising in the progress of war was not the making of a law; it was the application of the general rule laid down by the act.' United States v. Chemical Foundation, 272 U.S. 1, 12, 47 S.Ct. 1, 5, 71 L.Ed. 131.12
189The provisions of the Radio Act of 1927 (44 Stat. 1162, 1163), providing for assignments of frequencies or wave lengths to various stations, afford another instance. In granting licenses, the Radio Commission is required to act 'as public convenience, interest, or necessity requires.' Section 4. In construing this provision, the Court found that the statute itself declared the policy as to 'equality of radio broadcasting service, both of transmission and of reception,' and that it conferred authority to make allocations and assignments in order to secure, according to stated criteria, an equitable adjustment in the distribution of facilities.13 The standard set up was not so indefinite 'as to confer an unlimited power.' Federal Radio Commission v. Nelson Brothers Co., 289 U.S. 266, 279, 285, 53 S.Ct. 627, 634, 77 L.Ed. 1166.
191So also, from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations—'not for the government of their departments, but for administering the laws which did govern.' United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563. Such regulations become, indeed, binding rules of con-
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195duct, but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined. In the case of Grimaud, supra, a regulation made by the Secretary of Agriculture requiring permits for grazing sheep on a forest reserve of lands belonging to the United States was involved. The Court referred to the various acts for the establishment and management of forest reservations and the authorization of rules which would 'insure the objects of such reservations,' that is, 'to regulate their occupancy and use, and to preserve the forests thereon from destruction.' The Court observed that 'it was impracticable for Congress to provide general regulations for these various and varying details of management,' and that, in authorizing the Secretary of Agriculture to meet local conditions, Congress 'was merely conferring administrative functions upon an agent, and not delegating to him legislative power.' Id., pages 515, 516 of 220 U.S., 31 S.Ct. 480, 482. The Court quoted with approval the statement of the principle in Field v. Clark, supra, that the Congress cannot delegate legislative power, and upheld the regulation in question as an administrative rule for the appropriate execution of the policy laid down in the statute. See Wayman v. Southard, supra; Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 214, 215, 32 S.Ct. 436, 56 L.Ed. 729; Selective Draft Law Cases, 245 U.S. 366, 389, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas. 1918B, 856; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668.
197The applicable considerations were reviewed in Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 352, 72 L.Ed. 624, where the Court dealt with the so-called 'flexible tariff provision' of the Act of September 21, 1922 (42 Stat. 858, 941, 942, § 315 (19 USCA §§ 154—159)), and with the authority which it conferred upon the President. The Court applied the same principle that permitted the Congress to exercise its ratemaking power in interstate commerce, and found that a similar provision was justified for the fixing of customs duties; that is, as the Court said: 'If Congress shall lay down by
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201legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority.' The Court sustained the provision upon the authority of Field v. Clark, supra, repeating with approval what was there said, that 'What the President was required to do was merely in execution of the act of Congress.' Id., pages 409 411 of 276 U.S., 48 S.Ct. 348, 352.
203Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that section 9(c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited.
205If section 9(c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its lawmaking function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its lawmaking function, the Congress could at will and as to such subjects as it chooses transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government.
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209Sixth. There is another objection to the validity of the prohibition laid down by the executive order under section 9(c). The executive order contains no finding, no statement of the grounds of the President's action in enacting the prohibition. Both section 9(c) and the executive order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin14) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. The point is pertinent in relation to the first section of the National Industrial Recovery Act. We have said that the first section is but a general introduction, that it declares no policy and defines no standard with respect to the transportation which is the subject of section 9(c). But if from the extremely broad description contained in that section and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President's action under section 9(c), it would still be necessary for the President to comply with those conditions and to show that compliance as the ground of his prohibition. To hold
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213that he is free to select as he chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he does select, and the circumstances properly related to that object, would be in effect to make the conditions inoperative and to invest him with an uncontrolled legislative power.
215We are not dealing with action which, appropriately belonging to the executive province, is not the subject of judicial review or with the presumptions attaching to executive action.15 To repeat, we are concerned with the question of the delegation of legislative power. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, or of a board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board, or commission, and, if that authority depends on determinations of fact, those determinations must be shown. As the Court said in Wichita Railroad & Light Co. v. Public Utilities Commission, 260 U.S. 48, 59, 43 S.Ct. 51, 55, 67 L.Ed. 124: 'In creating such an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective.
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219It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this.' Referring to the ruling in the Wichita Case, the Court said in Mahler v. Eby, 264 U.S. 32, 44, 44 S.Ct. 283, 288, 68 L.Ed. 549: 'We held that the order in that case, made after a hearing and ordering a reduction, was void for lack of the express finding in the order. We put this conclusion, not only on the language of the statute, but also on general principles of constitutional government.' We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation.
221We see no escape from the conclusion that the Executive Orders of July 11, 1933, and July 14, 1933, Nos. 6199, 6204 (15 USCA § 709 note), and the regulations issued by the Secretary of the Interior thereunder, are without constitutional authority.
223The decrees of the Circuit Court of Appeals are reversed, and the causes are remanded to the District Court, with direction to modify its decrees in conformity with this opinion so as to grant permanent injunctions, restraining the defendants from enforcing those orders and regulations.
225It is so ordered.
227Mr. Justice CARDOZO (dissenting).
229With all that is said in the opinion of the court as to the Code of Fair Competition adopted by the President August 16, 1933, for the Governance of the Petroleum Industry, I am fully in accord. No question is before us at this time as to the power of Congress to regulate production. No question is here as to its competence to clothe the President with a delegated power whereby a code of fair competition may become invested with the force of
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233law. The petitioners were never in jeopardy by force of such a code or of regulations made thereunder. They were not in jeopardy because there was neither statute nor regulation subjecting them to pains or penalties if they set the code at naught. One must deplore the administrative methods that brought about uncertainty for a time as to the terms of executive orders intended to be law. Even so, the petitioners do not stand in need of an injunction to restrain the enforcement of a non-existent mandate.
235I am unable to assent to the conclusion that section 9(c) of the National Recovery Act, 15 USCA § 709(c), a section delegating to the President a very different power from any that is involved in the regulation of production or in the promulgation of a code, is to be nullified upon the ground that his discretion is too broad or for any other reason. My point of difference with the majority of the court is narrow. I concede that to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed. I deny that such a standard is lacking in respect of the prohibitions permitted by this section when the act with all its reasonable implications is considered as a whole. What the standard is becomes the pivotal inquiry.
237As to the nature of the act which the President is authorized to perform there is no need for implication. That at least is definite beyond the possibility of challenge. He may 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 by any state law or valid regulation or order prescribed thereunder. He is not left to roam at will among all the possible subjects of interstate transportation, picking and choosing as he pleases. I am far from asserting now that delegation would be
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241valid if accompanied by all that latitude of choice. In the laying of his interdict he is to confine himself to a particular commodity, and to that commodity when produced or withdrawn from storage in contravention of the policy and statutes of the states. He has choice, though within limits, as to the occasion, but none whatever as to the means. The means have been prescribed by Congress. There has been no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases. His act being thus defined, what else must he ascertain in order to regulate his discretion and bring the power into play? The answer is not given if we look to section 9(c) only, but it comes to us by implication from a view of other sections where the standards are defined. The prevailing opinion concedes that a standard will be as effective if imported into section 9(c) by reasonable implication as if put there in so many words. If we look to the whole structure of the statute, the test is plainly this, that the President is to forbid the transportation of the oil when he believes, in the light of the conditions of the industry as disclosed from time to time, that the prohibition will tend to effectuate the declared policies of the act—not merely his own conception of its policies, undirected by any extrinsic guide, but the policies announced by section 1 (15 USCA § 701) in the forefront of the statute as an index to the meaning of everything that follows.1
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245Oil produced or transported in excess of a statutory quota is known in the industry as 'hot oil,' and the record is replete with evidence as to the effect of such production and transportation upon the economic situation and upon national recovery. A declared policy of Congress in the adoption of the act is 'to eliminate unfair competitive practices.' Beyond question an unfair competitive practice exists when 'hot oil' is transported in interstate commerce with the result that lawabiding dealers must compete with lawbreakers. Here is one of the standards set up in the act to guide the President's discretion. Another declared policy of Congress is 'to conserve natural resources.' Beyond question the disregard of statutory quotas is wasting the oil fields in Texas and other states and putting in jeopardy of exhaustion one of the treasures of the nation. All this is developed in the record and in the arguments of counsel for the government with a wealth of illustration. Here is a second standard. Another declared policy of Congress is to 'promote the fullest possible utilization of the present productive capacity of industries,' and 'except as may be temporarily required' to 'avoid undue restriction of production.' Beyond question prevailing conditions in the oil industry have brought about the need for temporary restriction in order to promote in the long run the fullest productive capacity of business in all its many
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249branches, for the effect of present practices is to diminish that capacity by demoralizing prices and thus increasing unemployment. The ascertainment of these facts at any time or place was a task too intricate and special to be performed by Congress itself through a general enactment in advance of the event. All that Congress could safely do was to declare the act to be done and the policies to be promoted, leaving to the delegate of its power the ascertainment of the shifting facts that would determine the relation between the doing of the act and the attainment of the stated ends. That is what it did. It said to the President, in substance: You are to consider whether the transportation of oil in excess of the statutory quotas is offensive to one or more of the policies enumerated in section 1, whether the effect of such conduct is to promote unfair competition or to waste the natural resources or to demoralize prices or to increase unemployment or to reduce the purchasing power of the workers of the nation. If these standards or some of them have been flouted with the result of a substantial obstruction to industrial recovery, you may then by a prohibitory order eradicate the mischief.
251I am not unmindful of the argument that the President has the privilege of choice between one standard and another, acting or failing to act according to an estimate of values that is individual and personal. To describe his conduct thus is to ignore the essence of his function. What he does is to inquire into the industrial facts as they exist from time to time. Cf. Hampton, Jr., & Co. v. United States, 276 U.S. 394, at page 409, 48 S.Ct. 348, 72 L.Ed. 624; Locke's Appeal, 72 Pa. 491, 498, 13 Am.Rep. 716, quoted with approval in Field v. Clark, 143 U.S. 649, at page 694, 12 S.Ct. 495, 36 L.Ed. 294. These being ascertained, he is not to prefer one standard to another in any subjective attitude of mind, in any personal or willful way. He is to study the facts objectively, the violation of a standard
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255impelling him to action or inaction according to its observed effect upon industrial recovery—the ultimate end, as appears by the very heading of the title, to which all the other ends are tributary and mediate. Nor is there any essential conflict among the standards inter se, at all events when they are viewed in relation to section 9 (c) and the power there conferred. In its immediacy, the exclusion of oil from the channels of transportation is a restriction of interstate commerce, not a removal of obstructions. This is self-evident, and, of course, was understood by Congress when the discretionary power of exclusion was given to its delegate. But what is restriction in its immediacy may in its ultimate and larger consequences be expansion and development. Congress was aware that for the recovery of national well-being there might be need of temporary restriction upon production in one industry or another. It said so in section 1. When it clothed the President with power to impose such a restriction—to prohibit the flow of oil illegally produced—it laid upon him a mandate to inquire and determine whether the conditions in that particular industry were such at any given time as to make restriction helpful to the declared objectives of the act and to the ultimate attainment of industrial recovery. If such a situation does not present an instance of lawful delegation in a typical and classic form (Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624), categories long established will have to be formulated anew.
257In what has been written, I have stated, but without developing the argument, that by reasonable implication the power conferred upon the President by section 9(c) is to be read as if coupled with the words that he shall exercise the power whenever satisfied that by doing so he will effectuate the policy of the statute as theretofore declared. Two canons of interpretation, each familiar to our law,
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261leave no escape from that conclusion. One is that the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view. Cherokee Intermarriage Cases (Red Bird v. U.S.), 203 U.S. 76, 89, 27 S.Ct. 29, 51 L.Ed. 96; McKee v. United States, 164 U.S. 287, 17 S.Ct. 92, 41 L.Ed. 437; Talbott v. Board of Com'rs of Silver Bow County, 139 U.S. 438, 443, 444, 11 S.Ct. 594, 35 L.Ed. 210. The other is that, when a statute is reasonably susceptible of two interpretations, by one of which it is unconstitutional and by the other valid, the court prefers the meaning that preserves to the meaning that destroys. United States v. Delaware & Hudson Co., 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836; Knights Templars' & Masons' Life Indemnity Co. v. Jarman, 187 U.S. 197, 205, 23 S.Ct. 108, 47 L.Ed. 139. Plainly, section 1, with its declaration of the will of Congress, is the chart that has been furnished to the President to enable him to shape his course among the reefs and shallows of this act. If there could be doubt as to this when section 1 (15 USCA § 701) is viewed alone, the doubt would be dispelled by the reiteration of the policy in the sections that come later. In section 2 (15 USCA § 702). which relates to administrative agencies, in section 3 (15 USCA § 703), which relates to codes of fair competition, in section 4 (15 USCA § 704), which relates to agreements and licenses, in section 6 (15 USCA § 706), which prescribes limitations upon the application of the statute, and in section 10 (15 USCA § 710), which permits the adoption of rules and regulations, authority is conferred upon the President to do one or more acts as the delegate of Congress when he is satisfied that thereby he will aid 'in effectuating the policy of this title' or in carrying out its provisions. True section 9 (15 USCA § 709), the one relating to petroleum, does not by express words of reference embody the same standard, yet nothing different can have been meant. What, indeed, is the alternative? Either the statute means that the President is to adhere to the declared policy of Congress, or it means that he is to exercise a merely arbitrary will. The one construction invigorates the act; the other saps its life. A choice between them is not hard.
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265I am persuaded that a reference, express or implied, to the policy of Congress as declared in section 1, is a sufficient definition of a standard to make the statute valid. Discretion is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294, United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563, and Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624, state the applicable principle. Under these decisions the separation of powers between the Executive and Congress is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment, in response to the practical necessities of government, which cannot foresee to-day the developments of tomorrow in their nearly infinite variety. The Interstate Commerce Commission, probing the economic situation of the railroads of the country, consolidating them into systems, shaping in numberless ways their capacities and duties, and even making or unmaking the prosperity of great communities (Texas & Pacific R. Co. v. United States, 289 U.S. 627, 53 S.Ct. 768, 77 L.Ed. 1410), is a conspicuous illustration. See, e.g., 41 Stat. 479—482, c. 91, §§ 405, 406, 407, 408, 42 Stat. 27, c. 20, 49 U.S.C. §§ 3, 4, 5 (49 USCA §§ 3—5). Cf. Inter-Mountain Rate Case (U.S. v. Atchison, T. & S.F.R. Co.), 234 U.S. 476, 34 S.Ct. 986, 58 L.Ed. 1408; N.Y. Central Securities Co. v. United States, 287 U.S. 12, 24, 25, 53 S.Ct. 45, 77 L.Ed. 138; Sharfman, The Interstate Commerce Commission, vol. 2, pp. 357, 365. There could surely be no question as to the validity of an act whereby carriers would be prohibited from transporting oil produced in contravention of a statute if in the judgment of the Commission the practice was demoralizing the market and bringing disorder and insecurity into the national economy. What may be delegated to a commission may be delegated to the President. 'Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave
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269the determination of such time to the decision of an executive.' Hampton, Jr., & Co. v. United States, supra, at page 407 of 276 U.S., 48 S.Ct. 348, 351. Only recently (1932) the whole subject was discussed with much enlightenment in the Report by the Committee on Ministers' Powers to the Lord Chancellor of Great Britain. See, especially, pages 23, 51. In the complex life of to-day, the business of government could not go on without the delegation, in greater or less degree, of the power to adapt the rule to the swiftly moving facts.
271A striking illustration of this need is found in the very industry affected by this section, the production of petroleum and its transportation between the states. At the passage of the National Recovery Act (48 Stat. 195) no one could be certain how many of the states would adopt valid quota laws, or how generally the laws would be observed when adopted, or to what extent illegal practices would affect honest competitors or the stability of prices or the conservation of natural resources or the return of industrial prosperity. Much would depend upon conditions as they shaped themselves thereafter. Violations of the state laws might turn out to be so infrequent that the honest competitor would suffer little, if any, damage. The demand for oil might be so reduced that there would be no serious risk of waste, depleting or imperiling the resources of the nation. Apart from these possibilities, the business might become stabilized through voluntary co-operation or the adoption of a code or otherwise. Congress not unnaturally was unwilling to attach to the state laws a sanction so extreme as the cutting off of the privilege of interstate commerce unless the need for such action had unmistakably developed. What was left to the President was to ascertain the conditions prevailing in the industry, and prohibit or fail to prohibit according to the effect of those conditions upon the phases of the national policy relevant thereto.
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275From a host of precedents available, both legislative and judicial, I cite a few as illustrations. By an act approved June 4, 1794, during the administration of Washington (1 Stat. 372; Field v. Clark, 143 U.S. 649, 683, 12 S.Ct. 495, 36 L.Ed. 294) Congress authorized the President, when Congress was not in session, and for a prescribed period 'whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports or the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper.' By an act of 1799, February 9 (1 Stat. 613, 615, § 4), suspending commercial intercourse with France and its dependencies, 'it shall be lawful for the President of the United States, if he shall deem it expedient and consistent with the interest of the United States, by his order, to remit, and discontinue, for the time being, the restraints and prohibitions aforesaid; * * * and also to revoke such order (i.e., ree stablish the restraints), whenever, in his opinion, the interest of the United States shall require.' By an act of October 1, 1890 (26 Stat. 567, 612), sustained in Field v. Clark, supra, the President was authorized to suspend by proclamation the free introduction into this country of enumerated articles when satisfied that a country producing them imposes duties or other exactions upon the agricultural or other products of the United States which he may deem to be reciprocally unequal or unreasonable. By an act of September 21, 1922 (42 Stat. 858, 941, 945 (19 USCA §§ 154—159, 182 et seq.)), sustained in Hampton, Jr., & Co. v. United States, supra, the President was empowered to increase or decrease tariff duties so as to equalize the differences between the costs of production at home and abroad, and empowered, by the same means, to give redress for other acts of discrimination or unfairness 'when he finds that the public interest will be
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279served thereby.' 19 USCA § 182. Delegation was not confined to an inquiry into the necessity or occasion for the change. It included the magnitude of the change, the delegate thus defining the act to be performed. By an act of June 4, 1897 (30 Stat. 11, 35), amended in 1905 (33 Stat. 628), regulating the forest reservations of the nation, the purpose of the reservations was declared to be 'to improve and protect the forest within the reservation,' and to secure 'favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.' Without further guide or standard, the Secretary of Agriculture was empowered to 'make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.' The validity of these provisions was upheld in United States v. Grimaud, supra, as against the claim by one who violated the rules that there had been an unlawful delegation. Many other precedents are cited in the margin.2 They teach one lesson and a clear one.
281There is no fear that the nation will drift from its ancient moorings as the result of the narrow delegation of power permitted by this section. What can be done under cover of that permission is closely and clearly circumscribed both as to subject-matter and occasion. The statute was framed in the shadow of a national disaster. A host of unforeseen contingencies would have to be faced from day to day, and faced with a fullness of under
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285standing unattainable by any one except the man upon the scene. The President was chosen to meet the instant need.
287A subsidiary question remains as to the form of the executive order, which is copied in the margin.3 The question is a subsidiary one, for, unless the statute is invalid, another order with fuller findings or recitals may correct the informalities of this one, if informalities there are. But the order to my thinking is valid as it stands. The President was not required either by the Constitution or by any statute to state the reasons that had induced him to exercise the granted power. It is enough that the grant of power had been made and that pursuant to that grant he had signified the will to act. The will to act being declared, the law presumes that the declaration was preceded by due inquiry and that it was rooted in sufficient grounds. Such, for a hundred years and more, has been the doctrine of this court. The act of February 28, 1795 (1 Stat. 424), authorized the President 'whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,' to call forth such number of the militia of the states as he shall deem necessary and to issue his
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291orders to the appropriate officers for that purpose. Cf. Const. art. 1, § 8, cl. 15. When war threatened in the summer of 1812, President Madison, acting under the authority of that statute, directed Major General Dearborn to requisition from New York, Massachusetts, and Connecticut certain numbers of the states' militia. American State Papers, Military Affairs, vol. 1, pp. 322 325. No finding of 'imminent danger of invasion' was made by the President in any express way, nor was such a finding made by the Secretary of War or any other official. The form of the requisitions to Massachusetts and Connecticut appears in the state papers of the government (American State Papers, supra); the form of those to New York was almost certainly the same. Replevin was brought by a New York militia man who refused to obey the orders, and whose property had been taken in payment of a fine imposed by a court martial. The defendant, a deputy marshal, defended on the ground that the orders were valid, and the plaintiff demurred because there was no allegation that the President had adjudged that there was imminent danger of an invasion. The case came to this court. Martin v. Mott, 12 Wheat. 19, 32, 6 L.Ed. 537. In an opinion by Story, J., the court upheld the seizure. 'The argument is (he wrote) that the power confided to the president is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore, it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought t be applied to the delegation and exercise of this power intrusted to the executive of the nation for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the court, that this objection cannot be maintained. When the president exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance
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295of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and, a fortiori, this presumption ought to be favor ably applied to the chief magistrate of the Union. It is not necessary to aver, that the act which he might rightfully do, was so done.' A like presumption has been applied in other cases and in a great variety of circumstances. Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448, 458, 10 L.Ed. 535; Rankin v. Hoyt, 4 How. 327, 335, 11 L.Ed. 996; Carpenter v. Rannels, 19 Wall. 138, 146, 22 L.Ed. 77; Confiscation Cases (U.S. v. Clarke), 20 Wall. 92, 109, 22 L.Ed. 320; Knox County v. Ninth National Bank, 147 U.S. 91, 97, 13 S.Ct. 267, 37 L.Ed. 93; United States v. Chemical Foundation, 272 U.S. 1, 14, 15, 47 S.Ct. 1, 71 L.Ed. 131. This does not mean that the individual is helpless in the face of usurpation. A court will not revise the discretion of the Executive, sitting in judgment on his order as if it were the verdict of a jury. Martin v. Mott, supra. On the other hand, we have said that his order may not stand if it is an act of mere oppression, an arbitrary fiat that overleaps the bounds of judgment. Sterling v. Constantin, 287 U.S. 378, 399, 400, 401, 53 S.Ct. 190, 77 L.Ed. 375. The complainants and others in their position may show, if they can, that in no conceivable aspect was there anything in the conditions of the oil industry in July, 1933, to establish a connection between the prohibitory order and the declared policies of the Congress. This is merely to say that the standard must be such as to have at least a possible relation to the act to be performed under the delegated power. One can hardly suppose that a prohibitory order would survive a test in court if the Executive were to assert a relation between the transportation of petroleum and the maintenance of the gold standard or the preservation of peace in Europe or the Orient. On the other hand, there can be no challenge of such a mandate unless the possibility of a rational nexus is lacking alto-
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299gether. Here, in the case at hand, the relation between the order and the standard is manifest upon the face of the transaction from facts so notorious as to be within the range of our judicial notice. There is significance in the fact that it is not challenged even now.
301The President, when acting in the exercise of a delegated power, is not a quasi judicial officer, whose rulings are subject to review upon certiorari or appeal (Chicago Junction Case, 264 U.S. 258, 265, 44 S.Ct. 317, 68 L.Ed. 667; cf. Givens v. Zerbst, 255 U.S. 11, 20, 41 S.Ct. 227, 65 L.Ed. 475), or an administrative agency supervised in the same way. Officers and bodies such as those may be required by reviewing courts to express their decision in formal and explicit findings to the end that review may be intelligent. Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 75 L.Ed. 291; Beaumont, Sour Lake & Western R. Co. v. United States, 282 U.S. 74, 86, 51 S.Ct. 1, 75 L.Ed. 221; United States v. Baltimore & Ohio R. Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587, Jan. 7, 1935. Cf. Public Service Commission of Wisconsin v. Wisconsin Telephone Co., 289 U.S. 67, 53 S.Ct. 514, 77 L.Ed. 1036. Such is not the position or duty of the President. He is the Chief Executive of the nation, exercising a power committed to him by Congress, and subject, in respect of the formal qualities of his acts, to the restrictions, if any, accompanying the grant, but not to any others. One will not find such restrictions either in the statute itself or in the Constitution back of it. The Constitution of the United States is not a code of civil practice.
303The prevailing opinion cites Wichita Railroad & Light Co. v. Public Utilities Commission of Kansas, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124, and Mahler v. Eby, 264 U.S. 32, 44, 44 S.Ct. 283, 68 L.Ed. 549. One dealt with a delegation to a public utilities commission of the power to reduce existing rates if they were found to be unreasonable; the other a delegation to the Secretary of Labor of the power to deport aliens found after notice and a hearing to be undesirable residents. In each it was a
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307specific requirement of the statute that the basic fact conditioning action by the administrative agency be stated in a finding and stated there expressly. If legislative power is delegated subject to a condition, it is a requirement of constitutional government that the condition be fulfilled. In default of such fulfillment, there is in truth no delegation, and hence no official action, but only the vain show of it. The analogy is remote between power so conditioned and that in controversy here.
309Discretionary action does not become subject to review because the discretion is legislative rather than executive. If the reasons for the prohibition now in controversy had been stated in the order, the jurisdiction of the courts would have been no greater and no less. Investigation resulting in an order directed against a particular person after notice and a hearing is not to be confused with investigation preliminary and incidental to the formulation of a rule. An embargo under the act of 1794 would have been more than a nullity though there had been a failure to recite that what was done was essential to the public safety or to enumerate the reasons leading to that conclusion. If findings are necessary as a preamble to general regulations, the requirement must be looked for elsewhere than in the Constitution of the nation.
311There are other questions as to the validity of section 9(c), 15 USCA § 709(c), in matters unrelated to the delegation of power to the President, and also questions as to the regulations adopted in behalf of the President by the Secretary of the Interior. They are not considered in the prevailing opinion. However, they have been well reviewed and disposed of in the opinion of Sibley, J., writing for the court below. It is unnecessary at this time to dwell upon them further.
313The decree in each case should be affirmed.
3151 The full text of the Executive Order of July 11, 1933, is as follows:
317'Executive Order
319'Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage.
321'By virtue of the authority vested in me by the Act of Congress entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), 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 from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited.
323'Franklin D. Roosevelt.
325'The White House,
327'July 11, 1933.'
3292 The Executive Order of July 14, 1933, is as follows:
331'Executive Order
333'Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage.
335'By virtue of the authority vested in me by the Act of Congress, entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), in order to effectuate the intent and purpose of the Congress as expressed in Section 9(c) thereof, and for the purpose of securing the enforcement of my order of July 11, 1933, issued pursuant to said act, I hereby authorize the Secretary of the Interior to exercise all the powers vested in me, for the purpose of enforcing Section 9(c) of said act and said order, including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary.
337'Franklin D. Roosevelt.
339'The White House,
341'July 14, 1933.'
3433 The Executive Order of August 19, 1933, is as follows:
345'Executive Order
347'Code of Fair Competition for the Petroleum Industry.
349'An application having been duly made, pursuant to and in full compliance with the provisions of Title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a Code of Fair Competition for the Petroleum Industry, and hearings having been held thereon and the Administrator having rendered his report together with his recommendations and findings with respect thereto, and the Administrator having found that the said Code of Fair Competition complies in all respects with the pertinent provisions of Title I of said Act and that the requirements of clauses (1) and (2) of subsection (a) of Section 3 of the said Act have been met:
351'Now, Therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by Title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do adopt and approve the report, recommendations and findings of the Administrator and do order that the said Code of Fair Competition be and it is hereby approved.
353'Franklin D. Roosevelt.
355'Approval Recommended:
357'Hugh S. Johnson, Administrator.
359'The White House,
361'August 19, 1933.'
3634 The government states that, although the second paragraph of section 4 of article III was a part of the code for a short period prior to September 13, 1933, no legal basis exists for prosecution for production in Texas during that period.
3655 See United States v. The Schooner Peggy, 1 Cranch, 103, 109, 110, 2 L.Ed. 49; Dinsmore v. Southern Express Co., 183 U.S. 115;, 120, 22 S.Ct. 45, 46 L.Ed. 111; Crozier v. Fried Krupp Aktiengesellschaft, 224 U.S. 290, 302, 32 S.Ct. 488, 56 L.Ed. 771; Gulf, Colorado & Santa Fe R. Co. v. Dennis, 224 U.S. 503, 507, 32 S.Ct. 542, 56 L.Ed. 860; Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9, 21, 39 S.Ct. 1, 63 L.Ed. 100, 3 A.L.R. 323; Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; American Steel Foundries v. Tri-City Council, 257 U.S. 184, 201, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360; Texas Company v. Brown, 258 U.S. 466, 474, 42 S.Ct. 375, 66 L.Ed. 721.
3676 The text of section 1 is as follows:
369'Section 1. A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'
3717 Acts of June 4, 1794, 1 Stat. 372; March 3, 1795, 1 Stat. 444; June 13, 1798, 1 Stat. 565, 566; February 9, 1799, 1 Stat. 613, 615; February 27, 1800, 2 Stat. 7, 9, 10; March 3, 1805, 2 Stat. 339, 341, 342; February 28, 1806, 2 Stat. 351, 352; April 22, 1808, 2 Stat. 490.
3738 Marshall's Life of Washington, vol. 2, p. 319 et seq.
3759 Thus, prior to the Act of June 4, 1794 (1 Stat. 372), the Congress had laid embargoes, for limited periods, upon vessels in ports of the United States bound to foreign ports. Resolutions of March 26, 1794, and April 18, 1794, 1 Stat. 400, 401. Fearing that the national safety might be endangered, the President, by the Act of June 4, 1794, was authorized to lay an embargo, with appropriate regulations, whenever he found that 'the public safety shall so require' (section 1), the authority not to be exercised while the Congress was in session and the embargo to be limited in any case to 15 days after the commencement of the next session. The Act of March 3, 1795 (1 Stat. 444), authorizing the President to permit the exportation of arms, etc., was 'in cases connected with the security of the commercial interest of the United States, and for public purposes only.' By the Act of June 13, 1798 (1 Stat. 565), commercial intercourse was suspended between the United States and France and its dependencies. The act was to continue only until the end of the next session of Congress, and it was provided (section 5) that if, before the next session, the government of France 'shall clearly disavow, and shall be found to refrain from the aggressions, depredations and hostilities' against the vessels and other property of citizens of the United States, and shall acknowledge the neutrality of the United States, 'it shall be lawful for the President,' 'being well ascertained of the premises,' to remit and discontinue the prohibitions and restraints imposed by the act and to make proclamation accordingly. (continued on p. 423)
377The Act of February 9, 1799 (1 Stat. 613), further suspended commercial intercourse between the United States and France and its dependencies until March 3, 1800, and gave a similar authority (section 4) to the President to remit and discontinue the restraints and prohibitions of the act, 'if he shall deem it expedient and consistent with the interest of the United States,' either with respect to the French Republic or to any place belonging to that republic, 'with which a commercial intercourse may safely be renewed,' and to revoke such order if he found that the interest of the United States so required. The suspension of commercial intercourse was renewed by the Act of February 27, 1800 (2 Stat. 7) until March 3, 1801, with a similar provision as to the authority of the President. The Act of March 3, 1805 (2 Stat. 339), related to persons committing treason, felony, etc., within the jurisdiction of the United States and taking refuge in foreign armed vessels, and the authority to the President to permit or prevent the entry of such vessels into the waters of the United States (section 4) was 'in order to prevent insults to the authority of the laws, whereby the peace of the United States with foreign nations may be endangered.' See, also, Act of April 22, 1808, 2 Stat. 490. See, also, Proclamations of President Adams, 'Works of John Adams,' vol. IX, pp. 176, 177.
37910 See Act of June 28, 1809, 2 Stat. 550.
38111 Acts of March 3, 1815, 3 Stat. 224; March 3, 1817, 3 Stat. 361; January 7, 1824, 4 Stat. 2; May 24, 1828, 4 Stat. 308; May 31, 1830, 4 Stat. 425; March 6, 1866, 14 Stat. 3; March 3, 1883, 22 Stat. 490; June 26, 1884, 23 Stat. 57; October 1, 1890, 26 Stat. 616; R.S. §§ 2493, 2494, 4219, 4228. Proclamations of Presidents: 3 Stat.App. 1; 4 Stat.App. 3, pp. 814—818; 9 Stat.App. 1001, 1004; 11 Stat.App. 795; 13 Stat.App. 739; 14 Stat.App. 818, 819; 16 Stat.App. 1127; 17 Stat.App. 954, 956, 957; 21 Stat. 800; 23 Stat. 841, 842, 844.
383For other analogous statutes, see Acts of December 17, 1813, 3 Stat. 88, 93; June 19, 1886, 24 Stat. 79, 82 (section 17 (46 USCA § 142)); March 3, 1887, 24 Stat. 475 (46 USCA § 143); August 30, 1890, 26 Stat. 414, 415 (sections 4, 5 (21 USCA § 18; 19 USCA § 181)); February 15, 1893, 27 Stat. 449, 452 (section 7 (42 USCA § 111)); March 2, 1895, 28 Stat. 727, 733; September 8, 1916, 39 Stat. 756, 799 (15 USCA §§ 75—77); June 15, 1917, 40 Stat. 217, 225; August 10, 1917, 40 Stat. 276; October 6, 1917, 40 Stat. 411, 422 (section 11 (50 USCA Appendix, § 11)); March 4, 1919, 40 Stat. 1348, 1350; June 17, 1930, 46 Stat. 590, 704 (section 338 (19 USCA § 1338)). Resolutions of March 14, 1912, 37 Stat. 630; January 31, 1922, 42 Stat. 361 (22 USCA §§ 236, 237). Proclamations: 24 Stat. 1024, 1025, 1028, 1030; 27 Stat. 995, 1011; 38 Stat. 1960; 39 Stat. 1756; 40 Stat. 1683, 1689, et seq.
38512 See, also, sections 4(b) and 5(a) of the Trading with the Enemy Act, 40 Stat. 411, 414, 415, 50 USCA Appendix §§ 4(b), 5(a).
38713 Act of March 28, 1928, § 5 (amending section 9 of the Radio Act of 1927) 45 Stat. 373.
38914 See Acts and Proclamations cited in note 11, supra.
39115 See Philadelphia & T.R.R. Co. v. Stimpson, 14 Pet. 448, 458, 10 L.Ed. 535; Martin v. Mott, 12 Wheat. 19, 30, 32, 6 L.Ed. 537; Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163, 182, 184, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; United States v. Chemical Foundation, 272 U.S. 1, 14, 15, 47 S.Ct. 1, 71 L.Ed. 131; Sterling v. Constantin, 287 U.S. 378, 399, 53 S.Ct. 190, 77 L.Ed. 375.
3931 'Section 1. * * * It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'
395The act as a whole is entitled as one 'To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' and the heading of title I, which includes sections 1 to 10, is 'Industrial Recovery.'
3972 2 Stat. 411, December 19, 1806; 3 Stat. 224, March 3, 1815; 23 Stat. 31, 32, May 29, 1884; 25 Stat. 659, February 9, 1889; 38 Stat. 717 (15 USCA § 41 et seq.), September 26, 1914; 41 Stat. 593 (8 USCA § 157), May 10, 1920; Williams v. United States, 138 U.S. 514, 11 S.Ct. 457, 34 L.Ed. 1026; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Inter-Mountain Rate Case (U.S. v. Atchison, T. & S.F.R. Co.), 234 U.S. 476, 34 S.Ct. 986, 58 L.Ed. 1408; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. Cf. Emergency Banking Act of March 9, 1933, 48 Stat. 1; Agricultural Adjustment Act of May 12, 1933, 48 Stat. 51, 53, § 43.
3993 'Executive Order. Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage. By virtue of the authority vested in me by the Act of Congress entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), 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 from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited. Franklin D. Roosevelt. The White House, July 11, 1933.' No. 6199.
v.
UNITED STATES. UNITED STATES v. A.L.A. SCHECHTER POULTRY CORPORATION et al.
Phrase 'unfair methods of competition' within Federal Trade Commission Act has broader meaning than common-law term 'unfair competition,' but its scope cannot be precisely defined, and what constitutes 'unfair methods of competition' must be determined in particular instances, upon evidence, in light of particular competitive conditions and of what is found to be a specific and substantial public interest (Federal Trade Commission Act § 5 (15 USCA § 45)).
17[Syllabus from pages 495-500 intentionally omitted]
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21Messrs. Joseph Heller, Frederick H. Wood, and Jacob E. Heller, all of New York City, for petitioner A.L.A. Schechter Corporation and others.
23[Argument of Counsel from pages 500-508 intentionally omitted]
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27The Attorney General and Messrs. Stanley F. Reed, Sol. Gen., and Donald R. Richberg, both of Washington, D.C., for the United States.
29[Argument of Counsel from pages 508-519 intentionally omitted]
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33Mr. Chief Justice HUGHES delivered the opinion of the Court.
35Petitioners in No. 854 were convicted in the District Court of the United States for the Eastern District of New York on eighteen counts of an indictment charging violations of what is known as the 'Live Poultry Code,'1 and on an additional count for conspiracy to commit such violations.2 By demurrer to the indictment and appropriate motions on the trial, the defendants contended (1) that the code had been adopted pursuant to an unconstitutional delegation by Congress of legislative power; (2) that it attempted to regulate intrastate transactions which lay outside the authority of Congress; and (3) that in certain provisions it was repugnant to the due process clause of the Fifth Amendment.
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39'The Circuit Court of Appeals sustained the conviction on the conspiracy count and on sixteen counts for violation of the code, but reversed the conviction on two counts which charged violation of requirements as to minimum wages and maximum hours of labor, as these were not deemed to be within the congressional power of regulation. 76 F.(2d) 617. On the respective applications of the defendants (No. 854) and of the government (No. 864), this Court granted writs of certiorari April 15, 1935. 295 U.S. 723, 55 S.Ct. 651, 79 L.Ed. —-.
41New York City is the largest live poultry market in the United States. Ninety-six per cent. of the live poultry there marketed comes from other states. Three-fourths of this amount arrives by rail and is consigned to commission men or receivers. Most of these freight shipments (about 75 per cent.) come in at the Manhattan Terminal of the New York Central Railroad, and the remainder at one of the four terminals in New Jersey serving New York City. The commission men transact by far the greater part of the business on a commission basis, representing the shippers as agents, and remitting to them the proceeds of sale, less commissions, freight, and handling charges. Otherwise, they buy for their own account. They sell to slaughterhouse operators who are also called marketmen.
43The defendants are slaughterhouse operators of the latter class. A.L.A. Schechter Poultry Corporation and Schechter Live Poultry Market are corporations conducting wholesale poultry slaughterhouse markets in Brooklyn, New York City. Joseph Schechter operated the latter corporation and also guaranteed the credits of the former corporation, which was operated by Martin, Alex, and Aaron Schechter. Defendants ordinarily purchase their live poultry from commission men at the West Washington Market in New York City or at the railroad terminals serving the city, but occasionally they purchase from commission men in Philadelphia. They buy the
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47poultry for slaughter and resale. After the poultry is trucked to their slaughterhouse markets in Brooklyn, it is there sold, usually within twenty-four hours, to retail poultry dealers and butchers who sell directly to consumers. The poultry purchased from defendants is immediately slaughtered, prior to delivery, by shochtim in defendants' employ. Defendants do not sell poultry in interstate commerce.
49The 'Live Poultry Code' was promulgated under section 3 of the National Industrial Recovery Act.3 That section, the pertinent provisions of which are set forth in the margin,4 authorizes the President to approve 'codes of
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53fair competition.' SUCH A CODE may be approved for a trade or industry, upon application by one or more trade or industrial associations or groups, if the President finds (1) that such associations or groups 'impose no inequitable restrictions on admission to membership therein and are truly representative,' and (2) that such codes are not designed 'to promote monopolies or to eliminate or oppress small enterprises and will not operate to discrimi-
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57nate against them, and will tend to effectuate the policy' of title 1 of the act (15 USCA § 701 et seq.). Such codes 'shall not permit monopolies or monopolistic practices.' As a condition of his approval, the President may 'impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code as the President in his discretion deems necessary to effectuate the policy herein declared.' Where such a code has not been approved, the President may prescribe one, either on his own motion or on complaint. Violation of any provision of a code (so approved or prescribed) 'in any transaction in or affecting interstate or foreign commerce' is made a misdemeanor punishable by a fine of not more than $500 for each offense, and each day the violation continues is to be deemed a separate offense.
59The 'Live Poultry Code' was approved by the President on April 13, 1934. Its divisions indicate its nature and scope. The code has eight articles entitled (1) 'purposes,' (2) 'definitions,' (3) 'hours,' (4) 'wages,' (5) 'general labor provisions,' (6) 'administration,' (7) 'trade practice provisions,' and (8) 'general.'
61The declared purpose is 'To effect the policies of title I of the National Industrial Recovery Act.' The code is established as 'a code for fair competition for the live poultry industry of the metropolitan area in and about the City of New York.' That area is described as embracing the five boroughs of New York City, the counties of Rockland, Westchester, Nassau, and Suffolk in the state of New York, the counties of Hudson and Bergen in the state of New Jersey, and the county of Fairfield in the state of Connecticut.
63The 'industry' is defined as including 'every person engaged in the business of selling, purchasing of re-
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67sale, transporting, or handling and/or slaughtering live poultry, from the time such poultry comes into the New York metropolitan area to the time it is first sold in slaughtered form,' and such 'related branches' as may from time to time be included by amendment. Employers are styled 'members of the industry,' and the term 'employee' is defined to embrace 'any and all persons engaged in the industry, however compensated,' except 'members.'
69The code fixes the number of hours for workdays. It provides that no employee, with certain exceptions, shall be permitted to work in excess of forty hours in any one week, and that no employees, save as stated, 'shall be paid in any pay period less than at the rate of fifty (50) cents per hour.' The article containing 'general labor provisions' prohibits the employment of any person under 16 years of age, and declares that employees shall have the right of 'collective bargaining' and freedom of choice with respect to labor organizations, in the terms of section 7(a) of the act (15 USCA § 707(a). The minimum number of employees, who shall be employed by slaughterhouse operators, is fixed; the number being graduated according to the average volume of weekly sales.
71Provision is made for administration through an 'industry advisory committee,' to be selected by trade associations and members of the industry, and a 'code supervisor,' to be appointed, with the approval of the committee, by agreement between the Secretary of Agriculture and the Administrator for Industrial Recovery. The expenses of administration are to be borne by the members of the industry proportionately upon the basis of volume of business, or such other factors as the advisory committee may deem equitable, 'subject to the disapproval of the Secretary and/or Administrator.'
73The seventh article, containing 'trade practice provisions,' prohibits various practices which are said to consti-
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77tute 'unfair methods of competition.' The final article provides for verified reports, such as the Secretary or Administrator may require, '(1) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and (2) for the determination by the Secretary or Administrator of the extent to which the declared policy of the act is being effectuated by this code.' The members of the industry are also required to keep books and records which 'will clearly reflect all financial transactions of their respective businesses and the financial condition thereof,' and to submit weekly reports showing the range of daily prices and volume of sales' for each kind of produce.
79The President approved the code by an executive order (No. 6675—A) in which he found that the application for his approval had been duly made in accordance with the provisions of title 1 of the National Industrial Recover Act; that there had been due notice and hearings; that the code constituted 'a code of fair competition' as contemplated by the act and complied with its pertinent provisions, including clauses (1) and (2) of subsection (a) of section 3 of title 1 (15 USCA § 703(a)(1, 2); and that the code would tend 'to effectuate the policy of Congress as declared in section 1 of Title I.'5
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83The executive order also recited that the Secretary of Agriculture and the Administrator of the National Industrial Recovery Act had rendered separate reports as to the provisions within their respective jurisdictions. The Secretary of Agriculture reported that the provisions of the code 'establishing standards of fair competition (a) are regulations of transactions in or affecting the current of interstate and/or foreign commerce and (b) are reason-
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87able,' and also that the code would tend to effectuate the policy declared in title 1 of the act, as set forth in section 1 (15 USCA § 701). The report of the Administrator for Industrial Recovery dealt with wages, hours of labor, and other labor provisions.6
89Of the eighteen counts of the indictment upon which the defendants were convicted, aside from the count for conspiracy, two counts charged violation of the minimum wage and maximum hour provisions of the code, and ten counts were for violation of the requirement (found in the 'trade practice provisions') of 'straight killing.' This requirement was really one of 'straight' selling. The term 'straight killing' was defined in the code as 'the practice of requiring persons purchasing poultry for resale to accept the run of any half coop, coop, or coops, as purchased by slaughterhouse operators, except for culls.'7 The charges in the ten counts, respectively, were
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93that the defendants in selling to retail dealers and butchers had permitted 'selections of individual chickens taken from particular coops and half coops.'
95Of the other six counts, one charged the sale to a butcher of an unfit chicken; two counts charged the making of sales without having the poultry inspected or approved in accordance with regulations or ordinances of the city of New York; two counts charged the making of false reports or the failure to make reports relating to the range of daily prices and volume of sales for certain periods; and the remaining count was for sales to slaughterers or dealers who were without licenses required by the ordinances and regulations of the city of New York.
97First. Two preliminary points are stressed by the government with respect to the appropriate approach to the important questions presented. We are told that the provision of the statute authorizing the adoption of codes must be viewed in the light of the grave national crisis with which Congress was confronted. Undoubtedly, the conditions to which power is addressed are always to be considered when the exercise of power is challenged. Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.8 The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the
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101imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment—'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'
103The further point is urged that the national crisis demanded a broad and intensive co-operative effort by those engaged in trade and industry, and that this necessary co-operation was sought to be fostered by permitting them to initiate the adoption of codes. But the statutory plan is not simply one for voluntary effort. It does not seek merely to endow voluntary trade or industrial associations or groups with privileges or immunities. It involves the coercive exercise of the lawmaking power. The codes of fair competition which the statute attempts to authorize are codes of laws. If valid, they place all persons within their reach under the obligation of positive law, binding equally those who assent and those who do not assent. Violations of the provisions of the codes are punishable as crimes.
105Second. The Question of the Delegation of Legislative Power. We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. Panama Refining Company v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed . 446. The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, § 1. And the Congress is authorized 'To make all Laws which shall be necessary and proper for carrying into Execution' its general powers. Article 1, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting
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109legislation to complex conditions involving a host of details with which the national Legislature cannot deal directly. We pointed out in the Panama Refining Company Case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id., 293 U.S. 388, page 421, 55 S.Ct. 241, 79 L.Ed. 446.
111Accordingly, we look to the statute to see whether Congress has overstepped these limitations—whether Congress in authorizing 'codes of fair competition' has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others.
113The aspect in which the question is now presented is distinct from that which was before us in the case of the Panama Refining Company. There the subject of the statutory prohibition was defined. National Industrial Recovery Act, § 9(c), 15 USCA § 709(c). That subject was the transportation in interstate and foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. The question was with respect to the range of discretion given to the President in prohibiting that transportation. Id., 293 U.S. 388, pages 414, 415, 430, 55 S.Ct. 241, 79 L.Ed. 446. As to the 'codes of fair competition,' under section 3 of the act, the question is more funda-
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117mental. It is whether there is any adequate definition of the subject to which the codes are to be addressed.
119What is meant by 'fair competition' as the term is used in the act? Does it refer to a category established in the law, and is the authority to make codes limited accordingly? Or is it used as a convenient designation for whatever set of laws the formulators of a code for a particular trade or industry may propose and the President may approve (subject to certain restrictions), or the President may himself prescribe, as being wise and beneficient provisions for the government of the trade or industry in order to accomplish the broad purposes of rehabilitation, correction, and expansion which are stated in the first section of title 1?9
121The act does not define 'fair competition.' 'Unfair competition,' as known to the common law, is a limited concept. Primarily, and strictly, it relates to the palming off of one's goods as those of a rival trader. Good-year's Rubber Manufacturing Co. v. Good-year Rubber Co., 128 U.S. 598,
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125604, 9 S.Ct. 166, 32 L.Ed. 535; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 140, 25 S.Ct. 609, 49 L.Ed. 972; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713. In recent years, its scope has been extended. It has been held to apply to misappropriation as well as misrepresenation, to the selling of another's goods as one's own to misappropriation of what equitably belongs to a competitor. International News Service v. Associated Press, 248 U.S. 215, 241, 242, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. Unfairness in competition has been predicated of acts which lie outside the ordinary course of business and are tainted by fraud or coercion or conduct otherwise prohibited by law.10 Id., 248 U.S. 315, page 258, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. But it is evident that in its widest range, 'unfair competition,' as it has been understood in the law, does not reach the objectives of the codes which are authorized by the National Industrial Recovery Act. The codes may, indeed, cover conduct which existing law condemns, but they are not limited to conduct of that sort. The government does not contend that the act contemplates such a limitation. It would be opposed both to the declared purposes of the act and to its administrative construction.
127The Federal Trade Commission Act [section 5 (15 USCA § 45 11 introduced the expression 'unfair methods of competition,' which were declared to be unlawful. That was an expression new in the law. Debate apparently convinced the sponsors of the legislation that the words 'unfair competition,' in the light of their meaning at common law, were too narrow. We have said that the substituted phrase has a broader meaning, that it does not admit of precise definition; its scope being left to judicial determination as controversies arise. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 648, 649, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191; Federal Trade Commission v. R. F. Keppel, 291 U.S. 304, 310—312, 54 S.Ct. 423, 78 L.Ed. 814. What are
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131'UNFAIR METHODS OF COMPETITION' ARE THUS to be determined in particular instances, upon evidence, in the light of particular competitive conditions and of what is found to be a specific and substantial public interest. Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 453, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882; Federal Trade Commission v. Klesner, 280 U.S. 19, 27, 28, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838; Federal Trade Commission v. Raladam Co., supra; Federal Trade Commission v. R. F. Keppel, supra; Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S.Ct. 315, 78 L.Ed. 655. To make this possible, Congress set up a special procedure. A commission, a quasi judicial body, was created. Provision was made for formal complaint, for notice and hearing, for appropriate findings of fact supported by adequate evidence, and for judicial review to give assurance that the action of the commission is taken within its statutory authority. Federal Trade Commission v. Raladam Co., supra; Federal Trade Commission v. Klesner, supra.12
133In providing for codes, the National Industrial Recovery Act dispenses with this administrative procedure and with any administrative procedure of an analogous character. But the difference between the code plan of the Recovery Act and the scheme of the Federal Trade Commission Act lies not only in procedure but in subject-
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137matter. We cannot regard the 'fair competition' of the codes as antithetical to the 'unfair methods of competition' of the Federal Trade Commission Act. The 'fair competition' of the codes has a much broader range and a new significance. The Recovery Act provides that it shall not be construed to impair the powers of the Federal Trade Commission, but, when a code is approved, its provisions are to be the 'standards of fair competition' for the trade or industry concerned, and any violation of such standards in any transaction in or affecting interstate or foreign commerce is to be deemed 'an unfair method of competition' within the meaning of the Federal Trade Commission Act. Section 3(b) of the act, 15 USCA § 703(b).
139For a statement of the authorized objectives and content of the 'codes of fair competition,' we are referred repeatedly to the 'Declaration of Policy' in section 1 of title 1 of the Recovery Act (15 USCA § 701). Thus the approval of a code by the President is conditioned on his finding that it 'will tend to effectuate the policy of this title.' Section 3(a) of the act, 15 USCA § 703(a). The President is authorized to impose such conditions 'for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code, as the President in his discretion deems necessary to effectuate the policy herein declared.' Id. The 'policy herein declared' is manifestly that set forth in section 1. That declaration embraces a broad range of objectives. Among them we find the elimination of 'unfair competitive practices.' But, even if this clause were to be taken to relate to practices which fall under the ban of existing law, either common law or statute, it is still only one of the authorized aims described in section 1. It is there declared to be 'the policy of Congress'—'to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount
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143thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'13
145Under section 3, whatever 'may tend to effectuate' these general purposes may be included in the 'codes of fair competition.' We think the conclusion is inescapable that the authority sought to be conferred by section 3 was not merely to deal with 'unfair competitive practices' which offend against existing law, and could be the subject of judicial condemnation without further legislation, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President would approve or prescribe, as wise and beneficient measures for the government of trades and industries in order to bring about their rehabilitation, correction, and development, according to the general declaration of policy in section 1. Codes of laws of this sort are styled 'codes of fair competition.'
147We find no real controversy upon this point and we must determine the validity of the code in question in this aspect. As the government candidly says in its
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151brief: 'The words 'policy of this title' clearly refer to the 'policy' which Congress declared in the section entitled 'Declaration of Policy'—Section 1. All of the policies there set forth point toward a single goal—the rehabilitation of industry and the industrial recovery which unquestionably was the major policy of Congress in adopting the National Industrial Recovery Act.' And that this is the controlling purpose of the code now before us appears both from its repeated declarations to that effect and from the scope of its requirements. It will be observed that its provisions as to the hours and wages of employees and its 'general labor provisions' were placed in separate articles, and these were not included in the article on 'trade practice provisions' declaring what should be deemed to constitute 'unfair methods of competition.' The Secretary of Agriculture thus stated the objectives of the Live Poultry Code in his report to the President, which was recited in the executive order of approval:
153'That said code will tend to effectuate the declared policy of title I of the National Industrial Recovery Act as set forth in section 1 of said act in that the terms and provisions of such code tend to: (a) Remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof: (b) to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups; (c) to eliminate unfair competitive practices; (d) to promote the fullest possible utilization of the present productive capacity of industries; (e) to avoid undue restriction of production (except as may be temporarily required); (f) to increase the consumption of industrial and agricultural products by increasing purchasing power; and (g) otherwise to rehabilitate industry and to conserve natural resources.'
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157The government urges that the codes will 'consist of rules of competition deemed fair for each industry by representative members of that industry—by the persons most vitally concerned and most familiar with its problems.' Instances are cited in which Congress has availed itself of such assistance; as, e.g., in the exercise of its authority over the public domain, with respect to the recognition of local customs or rules of miners as to mining claims, 14 or, in matters of a more or less technical nature, as in designating the standard height of drawbars.15 But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associations or groups are familiar with the problems of their enterprises? And could an effort of that sort be made valid by such a preface of generalities as to permissible aims as we find in section 1 of title 1? The answer is obvious. Such a delegation of legislative power is unknown to our law, and is utterly inconsistent with the constitutional prerogatives and duties of Congress.
159The question, then, turns upon the authority which section 3 of the Recovery Act vests in the President to approve or prescribe. If the codes have standing as penal statutes, this must be due to the effect of the executive action. But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make
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163whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. See Panama Refining Company v. Ryan, supra, and cases there reviewed.
165Accordingly we turn to the Recovery Act to ascertain what limits have been set to the exercise of the President's discretion: First, the President, as a condition of approval, is required to find that the trade or industrial associations or groups which propose a code 'impose no inequitable restrictions on admission to membership' and are 'truly representative.' That condition, however, relates only to the status of the initiators of the new laws and not to the permissible scope of such laws. Second, the President is required to find that the code is not 'designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them.' And to this is added a proviso that the code 'shall not permit monopolies or monopolistic practices.' But these restrictions leave virtually untouched the field of policy envisaged by section 1, and, in that wide field of legislative possibilities, the proponents of a code, refraining from monopolistic designs, may roam at will, and the President may approve or disapprove their proposals as he may see fit. That is the precise effect of the further finding that the President is to make—that the code 'will tend to effectuate the policy of this title.' While this is called a finding, it is really but a statement of an opinion as to the general effect upon the promotion of trade or industry of a scheme of laws. These are the only findings which Congress has made essential in order to put into operation a legislative code having the aims described in the 'Declaration of Policy.'
167Nor is the breadth of the President's discretion left to the necessary implications of this limited requirement as to his findings. As already noted, the President in approving a code may impose his own conditions, adding to
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171or taking from what is proposed, as 'in his discretion' he thinks necessary 'to effectuate the policy' declared by the act. Of course, he has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. The act provides for the creation by the President of administrative agencies to assist him, but the action or reports of such agencies, or of his other assistants their recommendations and findings in relation to the making of codes—have no sanction beyond the will of the President, who may accept, modify, or reject them as he pleases. Such recommendations or findings in no way limit the authority which section 3 undertakes to vest in the President with no other conditions than those there specified. And this authority relates to a host of different trades and industries, thus extending the President's discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country.
173Such a sweeping delegation of legislative power finds no support in the decisions upon which the government especially relies. By the Interstate Commerce Act (49 USCA § 1 et seq.), Congress has itself provided a code of laws regulating the activities of the common carriers subject to the act, in order to assure the performance of their services upon just and reasonable terms, with adequate facilities and without unjust discrimination. Congress from time to time has elaborated its requirements, as needs have been disclosed. To facilitate the application of the standards prescribed by the act, Congress has provided an expert body. That administrative agency, in dealing with particular cases, is required to act upon notice and hearing, and its orders must be supported by findings of fact which in turn are sustained by evidence. Interstate Commerce Commission v. Louisville & Nashville Railroad Company, 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; United States
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177v. Baltimore & Ohio Railroad Company, 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587. When the Commission is authorized to issue, for the construction, extension, or abandonment of lines, a certificate of 'public convenience and necessity,' or to permit the acquisition by one carrier of the control of another, if that is found to be 'in the public interest,' we have pointed out that these provisions are not left without standards to guide determination. The authority conferred has direct relation to the standards prescribed for the service of common carriers, and can be exercised only upon findings, based upon evidence, with respect to particular conditions of transportation. New York Central Securities Corporation v. United States, 287 U.S. 12, 24, 25, 53 S.Ct. 45, 77 L.Ed. 138; Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe Railway Co., 270 U.S. 266, 273, 46 S.Ct. 263, 70 L.Ed. 578; Chesapeake & Ohio Railway Co. v. United States, 283 U.S. 35, 42, 51 S.Ct. 337, 75 L.Ed. 824.
179Similarly, we have held that the Radio Act of 192716 established standards to govern radio communications, and, in view of the limited number of available broadcasting frequencies, Congress authorized allocation and licenses. The Federal Radio Commission was created as the licensing authority, in order to secure a reasonable equality of opportunity in radio transmission and reception. The authority of the Commission to grant licenses 'as public convenience, interest or necessity requires' was limited by the nature of radio communications, and by the scope, character, and quality of the services to be rendered and the relative advantages to be derived through distribution of facilities. These standards established by Congress were to be enforced upon hearing and evidence by an administrative body acting under statutory restrictions adapted to the particular activity. Federal Radio Commission v. Nelson Brothers Bond & Mtg. Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166.
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183In Hampton, Jr. & Company v. United States, 276 U.S. 394, 48 S.Ct. 348, 350, 72 L.Ed. 624 the question related to the 'flexible tariff provision' of the Tariff Act of 1922.17 We held that Congress had described its plan 'to secure by law the imposition of customs duties on articles of imported merchandise which should equal the difference between the cost of producing in a foreign country the articles in question and laying them down for sale in the United States, and the cost of producing and selling like or similar articles in the United States.' As the differences in cost might vary from time to time, provision was made for the investigation and determination of these differences by the executive branch so as to make 'the adjustments necessary to conform the duties to the standard underlying that policy and plan.' Id. 276 U.S. 394, pages 404, 405, 48 S.Ct. 348, 350, 72 L.Ed. 624. The Court found the same principle to be applicable in fixing customs duties as that which permitted Congress to exercise its rate-making power in interstate commerce, 'by declaring the rule which shall prevail in the legislative fixing of rates,' and then remitting 'the fixing of such rates' in accordance with its provisions 'to a rate-making body.' Id. 276 U.S. 394, page 409, 48 S.Ct. 348, 352, 72 L.Ed. 624. The Court fully recognized the limitations upon the delegation of legislative power. Id. 276 U.S. 394, pages 408—411, 48 S.Ct. 348, 72 L.Ed. 624.
185To summarize and conclude upon this point: Section 3 of the Recovery Act (15 USCA § 703 is without precedent. It supplies no standards for any trade, industry, or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described in section 1. In view of the scope of that broad declaration and of the
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189nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.
191Third. The Question of the Application of the Provisions of the Live Poultry Code to Intrastate Transactions.—Although the validity of the codes (apart from the question of delegation) rests upon the commerce clause of the Constitution, section 3(a) of the act (15 USCA § 703(a) is not in terms limited to interstate and foreign commerce. From the generality of its terms, and from the argument of the government at the bar, it would appear that section 3(a) was designed to authorize codes without that limitation. But under section 3(f) of the act (15 USCA § 73(f) penalties are confined to violations of a code provision 'in any transaction in or affecting interstate or foreign commerce.' This aspect of the case presents the question whether the particular provisions of the Live Poultry Code, which the defendants were convicted for violating and for having conspired to violate, were within the regulating power of Congress.
193These provisions relate to the hours and wages of those employed by defendants in their slaughterhouses in Brooklyn and to the sales there made to retail dealers and butchers.
195Were these transactions 'in' interstate commerce? Much is made of the fact that almost all the poultry coming to New York is sent there from other states. But the code provisions, as here applied, do not concern the transportation of the poultry from other states to New York, or the transactions of the commission men or others to whom it is consigned, or the sales made by such consignees to defendants. When defendants had made their purchases, whether at the West Washington Market in New York City or at the railroad
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199terminals serving the city, or elsewhere, the poultry was trucked to their slaughterhouses in Brooklyn for local disposition. The interstate transactions in relation to that poultry then ended. Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers and butchers who in turn sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce. Brown v. Houston, 114 U.S. 622, 632, 633, 5 S.Ct. 1091, 29 L.Ed. 257; Public Utilities Commission v. Landon, 249 U.S. 236, 245, 39 S.Ct. 268, 63 L.Ed. 577; Industrial Association v. United States, 268 U.S. 64, 78, 79, 45 S.Ct. 403, 69 L.Ed. 849; Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 267, 48 S.Ct. 107, 72 L.Ed. 270.
201The undisputed facts thus afford no warrant for the argument that the poultry handled by defendants at their slaughterhouse markets was in a 'current' or 'flow' of interstate commerce, and was thus subject to congressional regulation. The mere fact that there may be a constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the state. It was not held, used, or sold by defendants in relation to any further transactions in interstate commerce and was not destined for transportation to other states. Hence decisions which deal with a stream of interstate commerce—where goods come to rest within a state temporarily and are later to go forward in interstate commerce—and with the regulations of transactions involved in that practical continuity of movement, are not applicable here. See Swift & Company v. United States, 196 U.S. 375, 387, 388, 25 S.Ct. 276, 49 L.Ed. 518; Lemke v. Farmers' Grain Company, 258 U.S. 50, 55, 42 S.Ct. 244, 66 L.Ed. 458; Stafford v. Wallace, 258 U.S. 495, 519, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chi-
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205cago v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 439, 50 S.Ct. 220, 74 L.Ed. 524.
207Did the defendants' transactions directly 'affect' interstate commerce so as to be subject to federal regulation? The power of Congress extends, not only to the regulation of transactions which are part of interstate commerce, but to the protection of that commerce from injury. It matters not that the injury may be due to the conduct of those engaged in intrastate operations. Thus, Congress may protect the safety of those employed in interstate transportation, 'no matter what may be the source of the dangers which threaten it.' Southern Railway Company v. United States, 222 U.S. 20, 27, 32 S.Ct. 2, 4, 56 L.Ed. 72. We said in Mondou v. New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1, 51, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44, that it is the 'effect upon interstate commerce,' not 'the source of the injury,' which is 'the criterion of congressional power.' We have held that, in dealing with common carriers engaged in both interstate and intrastate commerce, the dominant authority of Congress necessarily embraces the right to control their intrastate operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to secure the freedom of that traffic from interference or unjust discrimination and to promote the efficiency of the interstate service. Houston, E. & W.T.R. Co. v. U.S. (The Shreveport Case), 234 U.S. 342, 351, 352, 34 S.Ct. 833, 58 L.Ed. 1341; Railroad Commission of State of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U.S. 563, 588, 42 S.Ct. 232, 66 L.Ed. 371, 22 A.L.R. 1086. And combinations and conspiracies to restrain interstate commerce, or to monopolize any part of it, are none the less within the reach of the Anti-Trust Act (15 USCA § 1 et seq.) because the conspirators seek to attain their end by means of intrastate activities. Coronado Coal Company v. United Mine Workers, 268 U.S. 295, 310, 45 S.Ct. 551, 69 L.Ed. 963; Bedford Cut Stone Company v. Journeyman Stone Cutters' Association, 274 U.S. 37, 46, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L.R. 791.
209We recently had occasion, in Local 167 V. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804, to apply this principle in connection with
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213the live poultry industry. That was a suit to enjoin a conspiracy to restrain and monopolize interstate commerce in violation of the Anti-Trust Act. It was shown that marketmen, teamsters, and slaughterers (shochtim) had conspired to burden the free movement of live poultry into the metropolitan area in and about New York City. Marketmen had organized an association, had allocated retailers among themselves, and had agreed to increase prices. To accomplish their objects, large amounts of money were raised by levies upon poultry sold, men were hired to obstruct the business of dealers who resisted, wholesalers and retailers were spied upon, and by violence and other forms of intimidation were prevented from freely purchasing live poultry. Teamsters refused to handle poultry for recalcitrant marketmen, and members of the shochtim union refused to slaughter. In view of the proof of that conspiracy, we said that it was unnecessary to decide when interstate commerce ended and when intrastate commerce began. We found that the proved interference by the conspirators 'with the unloading, the transportation, the sales by marketmen to retailers, the prices charged, and the amount of profits exacted' operated 'substantially and directly to restrain and burden the untrammelled shipment and movement of the poultry,' while unquestionably it was in interstate commerce. The intrastate acts of the conspirators were included in the injunction because that was found to be necessary for the protection of interstate commerce against the attempted and illegal restraint. Id. 291 U.S. 293, pp. 297, 299, 300, 54 S.Ct. 396, 398, 78 L.Ed. 804.
215The instant case is not of that sort. This is not a prosecution for a conspiracy to restrain or monopolize interstate commerce in violation of the Anti-Trust Act. Defendants have been convicted, not upon direct charges of injury to interstate commerce or of interference with persons engaged in that commerce, but of violations of certain provisions of the Live Poultry Code and of con-
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219spiracy to commit these violations. Interstate commerce is brought in only upon the charge that violations of these provisions—as to hours and wages of employees and local sales—'affected' interstate commerce.
221In determining how far the federal government may go in controlling intrastate transactions upon the ground that they 'affect' interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. The precise line can be drawn only as individual cases arise, but the distinction is clear in principle. Direct effects are illustrated by the railroad cases we have cited, as, e.g., the effect of failure to use prescribed safety appliances on railroads which are the highways of both interstate and intrastate commerce, injury to an employee engaged in interstate transportation by the negligence of an employee engaged in an intrastate movement, the fixing of rates for intrastate transportation which unjustly discriminate against interstate commerce. But where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power. If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. Indeed, on such a theory, even the development of the state's commercial facilities would be subject to federal control. As we said in Simpson v. Shepard (Minnesota Rate Case), 230 U.S. 352, 410, 33 S.Ct. 729, 745, 57 L.Ed. 1511, 48 L.R.A. (N.S.) 1151, Ann. Cas. 1916A, 18: 'In the intimacy of commercial relations, much that is done in the superintendence of local matters may have an indirect bearing upon interstate commerce. The development of local resources and the extension of local facilities may have a very important effect upon communities less favored, and to an appreciable degree
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225alter the course of trade. The freedom of local trade may stimulate interstate commerce, while restrictive measures within the police power of the state, enacted exclusively with respect to internal business, as distinguished from interstate traffic, may in their reflex or indirect influence diminish the latter and reduce the volume of articles transported into or out of the state.' See, also, Kidd v. Pearson, 128 U.S. 1, 21, 9 S.Ct. 6, 32 L.Ed. 346; Heisler v. Thomas Colliery Co., 260 U.S. 245, 259, 260, 43 S.Ct. 83, 67 L.Ed. 237.
227The distinction between direct and indirect effects has been clearly recognized in the application of the Anti-Trust Act. Where a combination or conspiracy is formed, with the intent to restrain interstate commerce or to monopolize any part of it, the violation of the statute is clear. Coronado Coal Company v. United Mine Workers, 268 U.S. 295, 310, 45 S.Ct. 551, 69 L.Ed. 963. But, where that intent is absent, and the objectives are limited to intrastate activities, the fact that there may be an indirect effect upon interstate commerce does not subject the parties to the federal statute, notwithstanding its broad provisions. This principle has frequently been applied in litigation growing out of labor disputes. United Mine Workers v. Coronado Coal Company, 259 U.S. 344, 410, 411, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762; United Leather Workers' International Union v. Herkert, 265 U.S. 457, 464—467, 44 S.Ct. 623, 68 L.Ed. 1104, 33 A.L.R. 566; Industrial Association v. United States, 268 U.S. 64, 82, 45 S.Ct. 403, 69 L.Ed. 849; Levering & Garrigues v. Morrin, 289 U.S. 103, 107, 108, 53 S.Ct. 549, 551, 77 L.Ed. 1062. In the case last cited we quoted with approval the rule that had been stated and applied in Industrial Association v. United States, supra, after review of the decisions, as follows: 'The alleged conspiracy, and the acts here complained of, spent their intended and direct force upon a local situation—for building is as essentially local as mining, manufacturing or growing crops—and if, by resulting diminution of the commercial demand, interstate trade was curtailed either generally or in specific instances that was a fortuitous consequence so remote and indirect
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231as plainly to cause it to fall outside the reach of the Sherman Act (15 USCA §§ 1—7, 15 note).'
233While these decisions related to the application of the Federal statute, and not to its constitutional validity, the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power, and for all practical purposes we should have a completely centralized government. We must consider the provisions here in question in the light of this distinction.
235The question of chief importance relates to the provisions of the code as to the hours and wages of those employed in defendants' slaughterhouse markets. It is plain that these requirements are imposed in order to govern the details of defendants' management of their local business. The persons employed in slaughtering and selling in local trade are not employed in interstate commerce. Their hours and wages have no direct relation to interstate commerce. The question of how many hours these employees should work and what they should be paid differs in no essential respect from similar questions in other local businesses which handle commodities brought into a state and there dealt in as a part of its internal commerce. This appears from an examination of the considerations urged by the government with respect to conditions in the poultry trade. Thus, the government argues that hours and wages affect prices; that slaughterhouse men sell at a small margin above operating costs; that labor represents 50 to 60 per cent. of these costs; that a slaughterhouse operator paying lower wages or reducing his cost by exacting long hours of work translates his saving into lower prices; that this results in demands for a cheaper grade of goods: and that the cutting
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239of prices brings about a demoralization of the price structure. Similar conditions may be adduced in relation to other businesses. The argument of the government proves too much. If the federal government may determine the wages and hours of employees in the internal commerce of a state, because of their relation to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost, also affecting prices, such as the number of employees, rents, advertising, methods of doing business, etc. All the processes of production and distribution that enter into cost could likewise be controlled. If the cost of doing an intrastate business is in itself the permitted object of federal control, the extent of the regulation of cost would be a question of discretion and not of power.
241The government also makes the point that efforts to enact state legislation establishing high labor standards have been impeded by the belief that, unless similar action is taken generally, commerce will be diverted from the states adopting such standards, and that this fear of diversion has led to demands for federal legislation on the subject of wages and hours. The apparent implication is that the federal authority under the commerce clause should be deemed to extend to the establishment of rules to govern wages and hours in intrastate trade and industry generally throughout the country, thus overriding the authority of the states to deal with domestic problems arising from labor conditions in their internal commerce.
243It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it. Our growth and development have called for wide use of the commerce power of the federal government in its control over the expanded activities of interstate commerce and in protecting that
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247commerce from burdens, interferences, and conspiracies to restrain and monopolize it. But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce 'among the several States' and the internal concerns of a state. The same answer must be made to the contention that is based upon the serious economic situation which led to the passage of the Recovery Act—the fall in prices, the decline in wages and employment, and the curtailment of the market for commodities. Stress is laid upon the great importance of maintaining wage distributions which would provide the necessary stimulus in starting 'the cumulative forces making for expanding commercial activity.' Without in any way disparaging this motive, it is enough to say that the recuperative efforts of the federal government must be made in a manner consistent with the authority granted by the Constitution.
249We are of the opinion that the attempt through the provisions of the code to fix the hours and wages of employees of defendants in their intrastate business was not a valid exercise of federal power.
251The other violations for which defendants were convicted related to the making of local sales. Ten counts, for violation of the provision as to 'straight killing,' were for permitting customers to make 'selections of individual chickens taken from particular coops and half coops.' Whether or not this practice is good or bad for the local trade, its effect, if any, upon interstate commerce was only indirect. The same may be said of violations of the code by intrastate transactions consisting of the sale 'of an unfit chicken' and of sales which were not in accord with the ordinances of the city of New York. The requirement of reports as to prices and volumes of defendants' sales was incident to the effort to control their intrastate business.
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255In view of these conclusions, we find it unnecessary to discuss other questions which have been raised as to the validity of certain provisions of the code under the due process clause of the Fifth Amendment.
257On both the grounds we have discussed, the attempted delegation of legislative power and the attempted regulation of intrastate transactions which affect interstate commerce only indirectly, we hold the code provisions here in question to be invalid and that the judgment of conviction must be reversed.
259No. 854—reversed.
261No. 864—affirmed.
263Mr. Justice CARDOZO (concurring).
265The delegated power of legislation which has found expression in this code is not canalized within banks that keep it from overflowing. It is unconfined and vagrant, if I may borrow my own words in an earlier opinion. Panama Refining Co. v. Ryan, 293 U.S. 388, 440, 55 S.Ct. 241, 79 L.Ed. 446.
267This court has held that delegation may be unlawful, though the act to be performed is definite and single, if the necessity, time, and occasion of performance have been left in the end to the discretion of the delegate. Panama Refining Co. v. Ryan, supra. I thought that ruling went too far. I pointed out in an opinion that there had been 'no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases.' 293 U.S. 388, at page 435, 55 S.Ct. 241, 254, 79 L.Ed. 446. Choice, though within limits, had been given him 'as to the occasion, but none whatever as to the means.' Id. Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils and upon discovery correct them.
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271I have said that there is no standard, definite or even approximate, to which legislation must conform. Let me make my meaning more precise. If codes of fair competition are codes eliminating 'unfair' methods of competition ascertained upon inquiry to prevail in one industry or another, there is no unlawful delegation of legislative functions when the President is directed to inquire into such practices and denounce them when discovered. For many years a like power has been committed to the Federal Trade Commission with the approval of this court in a long series of decisions. Cf. Federal Trade Commission v. R.F. Keppel & Bro., 291 U.S. 304, 312, 54 S.Ct. 423, 78 L.Ed. 814; Federal Trade Commission v. Raladam Co., 283 U.S. 643, 648, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191; Federal Trade Commission v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993. Delegation in such circumstances is born of the necessities of the occasion. The industries of the country are too many and diverse to make it possible for Congress, in respect of matters such as these, to legislate directly with adequate appreciation of varying conditions. Nor is the substance of the power changed because the President may act at the instance of trade or industrial associations having special knowledge of the facts. Their function is strictly advisory; it is the imprimatur of the President that begets the quality of law. Doty v. Love, 295 U.S. 64, 55 S.Ct. 558, 79 L.Ed. —-. When the task that is set before one is that of cleaning house, it is prudent as well as usual to take counsel of the dwellers.
273But there is another conception of codes of fair competition, their significance and function, which leads to very different consequences, though it is one that is struggling now for recognition and acceptance. By this other conception a code is not to be restricted to the elimination of business practices that would be characterized by general acceptation as oppressive or unfair. It is to include whatever ordinances may be desirable or helpful for the well-being or prosperity of the industry
275Page 553
277affected. In that view, the function of its adoption is not merely negative, but positive; the planning of improvements as well as the extirpation of abuses. What is fair, as thus conceived, is not something to be contrasted with what is unfair or fraudulent or tricky. The extension becomes as wide as the field of industrial regulation. If that conception shall prevail, anything that Congress may do within the limits of the commerce clause for the betterment of business may be done by the President upon the recommendation of a trade association by calling it a code. This is delegation running riot. No such plenitude of power is susceptible of transfer. The statute, however, aims at nothing less, as one can learn both from its terms and from the administrative practice under it. Nothing less is aimed at by the code now submitted to our scrutiny.
279The code does not confine itself to the suppression of methods of competition that would be classified as unfair according to accepted business standards or accepted norms of ethics. It sets up a comprehensive body of rules to promote the welfare of the industry, if not the welfare of the nation, without reference to standards, ethical or commercial, that could be known or predicted in advance of its adoption. One of the new rules, the source of ten counts in the indictment, is aimed at an established practice, not unethical or oppressive, the practice of selective buying. Many others could be instanced as open to the same objection if the sections of the code were to be examined one by one. The process of dissection will not be traced in all its details. Enough at this time to state what it reveals. Even if the statute itself had fixed the meaning of fair competition by way of contrast with practices that are oppressive or unfair, the code outruns the bounds of the authority conferred. What is excessive is not sporadic or superficial. It is deep-seated and per-
281Page 554
283vasive. The licit and illicit sections are so combined and welded as to be incapable of severance without destructive mutilation.
285But there is another objection, far-reaching and incurable, aside from any defect of unlawful delegation.
287If this code had been adopted by Congress itself, and not by the President on the advice of an industrial association, it would even then be void, unless authority to adopt it is included in the grant of power 'to regulare commerce with foreign nations, and among the several States.' United States Constitution, art. 1, § 8, cl. 3.
289I find no authority in that grant for the regulation of wages and hours of labor in the intrastate transactions that make up the defendants' business. As to this feature of the case, little can be added to the opinion of the court. There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours 'is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.' Per Learned Hand, J., in the court below. The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. What is near and what is distant may at times be uncertain. Cf. Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839. There is no penumbra of uncertainty obscuring judgment here. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our federal system.
291To take from this code the provisions as to wages and the hours of labor is to destroy it altogether. If a trade or an industry is so predominantly local as to be exempt
293Page 555
295from regulation by the Congress in respect of matters such as these, there can be no 'code' for it at all. This is clear from the provisions of section 7(a) of the act (15 USCA § 707(a), with its explicit disclosure of the statutory scheme. Wages and the hours of labor are essential features of the plan, its very bone and sinew. There is no opportunity in such circumstances for the severance of the infected parts in the hope of saving the remainder. A code collapses utterly with bone and sinew gone.
297I am authorized to state that Mr. Justice STONE joins in this opinion.
2991 The full title of the Code is 'Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.'
3012 The indictment contained 60 counts, of which 27 counts were dismissed by the trial court, and on 14 counts the defendants were acquitted.
3033 Act of June 16, 1933, c. 90, 48 Stat. 195, 196; 15 U.S.C. § 703 (15 USCA § 703).
3054 'Codes of fair competition.
307'Sec. 3. (a) Upon the application to the President by one or more trade or industrial associations or groups, the President may approve a code or codes of fair competition for the trade or industry or subdivision thereof, represented by the applicant or applicants, if the President finds (1) that such associations or groups impose no inequitable restrictions on admission to membership therein and are truly representative of such trades or industries or subdivisions thereof, and (2) that such code or codes are not designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy of this title: Provided, That such code or codes shall not permit monopolies or monopolistic practices: Provided further, That where such code or codes affect the services and welfare of persons engaged in other steps of the economic process, nothing in this section shall deprive such persons of the right to be heard prior to approval by the President of such code or codes. The President may, as a condition of his approval of any such code, impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code. as the President in his discretion deems necessary to effectuate the policy herein declared.
309'(b) After the President shall have approved any such code, the provisions of such code shall be the standards of fair competition for such trade or industry or subdivision thereof. Any violation of such standards in any transaction in or affecting interstate or foreign commerce shall be deemed an unfair method of competition in commerce within the meaning of the Federal Trade Commission Act, as amended (chapter 2 of this title); but nothing in this title (chapter) shall be construed to impair the powers of the Federal Trade Commission under such Act, as amended (chapter 2).
311'(c) The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of any code of fair competition approved under this title (chapter); and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations.
313'(d) Upon his own motion, or if complaint is made to the President that abuses inimical to the public interest and contrary to the policy herein declared are prevalent in any trade or industry or subdivision thereof, and if no code of fair competition therefor has theretofore been approved by the President, the President, after such public notice and hearing as he shall specify, may prescribe and approve a code of fair competition for such trade or industry or subdivision thereof, which shall have the same effect as a code of fair competition approved by the President under subsection (a) of this section. * * *
315'(f) When a code of fair competition has been approved or prescribed by the President under this title (chapter), any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense.'
3175 The executive order is as follows:
319'Executive Order.
321'Approval of Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.
323'Whereas, the Secretary of Agriculture and the Administrator of the National Industrial Recovery Act having rendered their separate reports and recommendations and findings on the provisions of said code, coming within their respective jurisdictions, as set forth in the Executive Order No. 6182 of June 26, 1933, as supplemented by Executive Order No. 6207 of July 21, 1933, and Executive Order N. 6345 of October 20, 1933, as amended by Executive Order No. 6551 of January 8, 1934;
325'Now, therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do hereby find that:
327'1. An application has been duly made, pursuant to and in full compliance with the provisions of title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a code of fair competition for the live poultry industry in the metropolitan area in and about the City of New York; and
329'2. Due notice and opportunity for hearings to interested parties have been given pursuant to the provisions of the act and regulations thereunder; and,
331'3. Hearings have been held upon said code, pursuant to such notice and pursuant to the pertinent provisions of the act and regulations thereunder; and
333'4. Said code of fair competition constitutes a code of fair competition, as contemplated by the act and complies in all respects with the pertinent provisions of the act, including clauses (1) and (2) of subsection (a) of section 3 of title I of the act; and
335'5. It appears, after due consideration, that said code of fair competition will tend to effectuate the policy of Congress as declared in section 1 of title I of the act.
337'Now, therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do hereby approve said Code of Fair Competition for the Live Poultry Industry in the Metropolitan Area in and about the City of New York.
339'Franklin D. Roosevelt,
341'President of the United States.
343'The White House,
345'April 13, 1934.'
3476 The Administrator for Industrial Recovery stated in his report that the Code had been sponsored by trade associations representing about 350 wholesale firms, 150 retail shops, and 21 commission agencies; that these associations represented about 90 per cent. of the live poultry industry by numbers and volume of business; and that the industry as defined in the code supplies the consuming public with practically all the live poultry coming into the metropolitan area from forty-one states and transacted an aggreagate annual business of approximately $90,000,000. He further said that about 1,610 employees were engaged in the industry; that it had suffered severely on account of the prevailing economic conditions and because of unfair methods of competition and the abuses that had developed as a result of the 'uncontrolled methods of doing business'; and that these conditions had reduced the number of employees by approximately 40 per cent. He added that the report of the Research and Planning Division indicated that the code would bring about an increase in wages of about 20 per cent. in this industry and an increase in employment of 19.2 per cent.
3497 The prohibition in the code (article VII, § 14) was as follows: 'Straight Killing.—The use, in the wholesale slaughtering of poultry, of any method of slaughtering other than 'straight killing' or killing on the basis of official grade. Purchasers may, however, make selection of a half coop, coop, or coops, but shall not have the right to make any selection of particular birds.'
3518 See Ex parte Milligan, 4 Wall. 2, 120, 121, 18 L.Ed. 281; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481.
3539 That section (15 USCA § 701), under the heading 'Declaration of Policy,' is as follows: 'Section 1. A national emergency productive of widespread unemployment and disoreganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of co-operative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'
35510 See cases collected in Nims on Unfair Competition and Trade-Marks, c. I, § 4, p. 19, and chapter XIX.
35711 Act of September 26, 1914, c. 311, 38 Stat. 717, 719, 720 (section 5 (15 USCA § 45)).
35912 The Tariff Act of 1930 (section 337, 46 Stat. 703 (19 USCA § 1337)), like the Tariff Act of 1922 (section 316, 42 Stat. 943 (19 USCA § 174 et seq.)), employs the expressions 'unfair methods of competition' and 'unfair acts' in the importation of articles into the United States, and in their sale, 'the effect or tendency of which is to destroy or substantially injure an industry, efficiently and economically operated, in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States.' Provision is made for investigation and findings by the Tariff Commission, for appeals upon questions of law to the United States Court of Customs and Patent Appeals, and for ultimate action by the President when the existence of any 'such unfair method or act' is established to his satisfaction.
36113 See note 9.
36314 Act of July 26, 1866, c. 262, 14 Stat. 251; Jackson v. Roby, 109 U.S. 440, 441, 3 S.Ct. 301, 27 L.Ed. 990; Erhardt v. Boaro, 113 U.S. 527, 535, 5 S.Ct. 560, 28 L.Ed. 1113; Butte City Water Co. v. Baker, 196 U.S. 119, 126, 25 S.Ct. 211, 49 L.Ed. 409.
36515 Act of March 2, 1893, c. 196, 27 Stat. 531 (45 USCA § 1 et seq.); St. Louis, Iron Mountain & S. Railway Co. v. Taylor, 210 U.S. 281, 286, 28 S.Ct. 616, 52 L.Ed. 1061.
36716 Act of February 23, 1927, c. 169, 44 Stat. 1162, as amended by the Act of March 28, 1928, c. 263, 45 Stat. 373.
36917 Act of September 21, 1922, c. 356, title 3, § 315, 42 Stat. 858, 941 (19 USCA § 154 et seq.).
135 S.Ct. 1225 (2015)
No. 13-1080.
Supreme Court of United States.
Argued December 8, 2014.
Decided March 9, 2015.
[1227] KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.
Curtis E. Gannon, for Petitioners.
Thomas H. Dupree, Jr., Washington, DC, for Respondent.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioners.
Louis P. Warchot, Daniel Saphire, Association of American Railroads, Washington, DC, Thomas H. Dupree, Jr., Counsel of Record, Amir C. Tayrani, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, Washington, DC, for Respondent.
[1228] Kathryn B. Thomson, General Counsel, Paul M. Geier, Assistant General Counsel for Litigation, Peter J. Plocki, Deputy Assistant General Counsel for Litigation, Joy K. Park, Trial Attorney, Department of Transportation, Washington, DC, Melissa Porter, Chief Counsel, Zeb G. Schorr, Deputy Assistant Chief Counsel, Federal Railroad Administration, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Mark B. Stern, Michael S. Raab, Daniel Tenny, Patrick G. Nemeroff, Attorneys, Department of Justice, Washington, DC, for Petitioners.
In 1970, Congress created the National Railroad Passenger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue "metrics and standards" that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members' freight services, respondent — the Association of American Railroads — filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individuals sued in their official capacity.
Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected both of respondent's claims. The Court of Appeals for the District of Columbia Circuit reversed, finding that, for purposes of this dispute, Amtrak is a private entity and that Congress violated nondelegation principles in its grant of joint authority to Amtrak and the FRA. On that premise the Court of Appeals invalidated the metrics and standards.
Having granted the petition for writ of certiorari, 573 U.S. ___, 134 S.Ct. 2865, 189 L.Ed.2d 805 (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak's actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards — including questions implicating the Constitution's structural separation of powers and the Appointments Clause, U.S. Const., Art. II, § 2, cl. 2 — may still remain in the case. As those matters have not yet been passed upon by the Court of Appeals, this case is remanded.
Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation's railroads. See Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 383-384, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995); National Railroad Passenger Corporation v. Atchison, T. & S.F.R. Co., 470 U.S. 451, 453-457, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985); [1229] see also Rail Passenger Service Act of 1970, 84 Stat. 1328. Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight railroads. So, as a condition of relief from their common-carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties — or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See 45 U.S.C. §§ 561, 562 (1970 ed.). The Surface Transportation Board (STB) now occupies the dispute-resolution role originally assigned to the ICC. See 49 U.S.C. § 24308(a) (2012 ed.). Since 1973, Amtrak has received a statutory preference over freight transportation in using rail lines, junctions, and crossings. See § 24308(c).
The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See 122 Stat. 4907. Section 207(a) of the PRIIA provides for the creation of the metrics and standards:
"Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services." Id., at 4916.
Section 207(d) of the PRIIA further provides:
"If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." Id., at 4917.
The PRIIA specifies that the metrics and standards created under § 207(a) are to be used for a variety of purposes. Section 207(b) requires the FRA to "publish a quarterly report on the performance and service quality of intercity passenger train operations" addressing the specific elements to be measured by the metrics and standards. Id., at 4916-4917. Section 207(c) provides that, "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements." Id., at 4917. And § 222(a) obliges Amtrak, within one year after the metrics and standards are established, to "develop and implement a plan to improve on-board service pursuant to the metrics and standards for such service developed under [§ 207(a) ]." Id., at 4932.
Under § 213(a) of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, "[i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters," the STB may initiate an investigation "to determine whether and to what extent delays ... are due to causes that could reasonably be addressed ... by [1230] Amtrak or other intercity passenger rail operators." Id., at 4925-4926. While conducting an investigation under § 213(a), the STB "has authority to review the accuracy of the train performance data and the extent to which scheduling and congestion contribute to delays" and shall "obtain information from all parties involved and identify reasonable measures and make recommendations to improve the service, quality, and on-time performance of the train." Id., at 4926. Following an investigation, the STB may award damages if it "determines that delays or failures to achieve minimum standards ... are attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation." Ibid. The STB is further empowered to "order the host rail carrier to remit" damages "to Amtrak or to an entity for which Amtrak operates intercity passenger rail service." Ibid.
In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75-76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. Id., at 129-144. The metrics and standards address, among other matters, Amtrak's financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities.
Of most importance for this case, the metrics and standards also address Amtrak's on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. Id., at 133-135. With respect to "host-responsible delays" — that is to say, delays attributed to the railroads along which Amtrak trains travel — the metrics and standards provide that "[d]elays must not be more than 900 minutes per 10,000 Train-Miles." Id., at 138. Amtrak conductors determine responsibility for particular delays. Ibid., n. 23.
In the District Court for the District of Columbia, respondent alleged injury to its members from being required to modify their rail operations, which mostly involve freight traffic, to satisfy the metrics and standards. Respondent claimed that § 207 "violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate." Id., at 176-177, Complaint ¶ 51. Respondent also asserted that § 207 violates the Fifth Amendment Due Process Clause by "[v]esting the coercive power of the government" in Amtrak, an "interested private part[y]." Id., at 177, ¶¶ 53-54. In its prayer for relief respondent sought, among other remedies, a declaration of § 207's unconstitutionality and invalidation of the metrics and standards. Id., at 177.
The District Court granted summary judgment to petitioners on both claims. See 865 F.Supp.2d 22 (D.C.2012). Without deciding whether Amtrak must be deemed private or governmental, it rejected respondent's nondelegation argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and standards so that § 207 is constitutional. See id., at 35.
The Court of Appeals for the District of Columbia Circuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning [1231] in central part that because "Amtrak is a private corporation with respect to Congress's power to delegate ... authority," it cannot constitutionally be granted the "regulatory power prescribed in § 207." 721 F.3d 666, 677 (2013). The Court of Appeals did not reach respondent's due process claim. See ibid.
In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards — authority it described as "regulatory power," ibid. — the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court's analysis treated as controlling Congress' statutory command that Amtrak "`is not a department, agency, or instrumentality of the United States Government.'" Id., at 675 (quoting 49 U.S.C. § 24301(a)(3)). The Court of Appeals also relied on Congress' pronouncement that Amtrak "`shall be operated and managed as a for-profit corporation.'" 721 F.3d, at 675 (quoting § 24301(a)(2)); see also id., at 677 ("Though the federal government's involvement in Amtrak is considerable, Congress has both designated it a private corporation and instructed that it be managed so as to maximize profit. In deciding Amtrak's status for purposes of congressional delegations, these declarations are dispositive"). Proceeding from this premise, the Court of Appeals concluded it was impermissible for Congress to "delegate regulatory authority to a private entity." Id., at 670; see also ibid. (holding Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), prohibits any such delegation of authority).
That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress' authority to address, see, e.g., United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 491-492 (C.A.D.C. 2004) (Roberts, J.), are not dispositive of Amtrak's status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an independent inquiry into Amtrak's status under the Constitution reveals the Court of Appeals' premise was flawed.
It is appropriate to begin the analysis with Amtrak's ownership and corporate structure. The Secretary of Transportation holds all of Amtrak's preferred stock and most of its common stock. Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. 49 U.S.C. § 24302(a)(1). These eight Board members, in turn, select Amtrak's president. § 24302(a)(1)(B); § 24303(a). Amtrak's Board members are subject to salary limits set by Congress, § 24303(b); and the Executive Branch has concluded that all appointed Board members are removable by the President without cause, see 27 Op. Atty. Gen. 163 (2003).
Under further statutory provisions, Amtrak's Board members must possess certain qualifications. Congress has directed that the President make appointments based on an individual's prior experience in the transportation industry, § 24302(a)(1)(C), and has provided that not more than five of the seven appointed Board members be from the same political party, § 24302(a)(3). In selecting Amtrak's Board members, moreover, the President must consult with leaders of both parties in both Houses of Congress in order to "provide adequate and balanced representation of the major geographic regions [1232] of the United States served by Amtrak." § 24302(a)(2).
In addition to controlling Amtrak's stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak's priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance. § 24315. The Freedom of Information Act applies to Amtrak in any year in which it receives a federal subsidy, 5 U.S.C. § 552, which thus far has been every year of its existence. Pursuant to its status under the Inspector General Act of 1978 as a "`designated Federal entity,'" 5 U.S.C.App. § 8G(a)(2), p. 521, Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Furthermore, Congress conducts frequent oversight hearings into Amtrak's budget, routes, and prices. See, e.g., Hearing on Reviewing Alternatives to Amtrak's Annual Losses in Food and Beverage Service before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, 113th Cong., 1st Sess., 5 (2013) (statement of Thomas J. Hall, chief of customer service, Amtrak); Hearing on Amtrak's Fiscal Year 2014 Budget: The Starting Point for Reauthorization before the Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Committee on Transportation and Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (statement of Joseph H. Boardman, president and chief executive officer, Amtrak).
It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must "provide efficient and effective intercity passenger rail mobility," 49 U.S.C. § 24101(b); "minimize Government subsidies," § 24101(d); provide reduced fares to the disabled and elderly, § 24307(a); and ensure mobility in times of national disaster, § 24101(c)(9).
In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak's day-to-day operations. Amtrak must maintain a route between Louisiana and Florida. § 24101(c)(6). When making improvements to the Northeast corridor, Amtrak must apply seven considerations in a specified order of priority. § 24902(b). And when Amtrak purchases materials worth more than $1 million, these materials must be mined or produced in the United States, or manufactured substantially from components that are mined, produced, or manufactured in the United States, unless the Secretary of Transportation grants an exemption. § 24305(f).
Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46.
Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are extensively supervised and substantially funded by the political branches. A majority of its Board is appointed by the President and confirmed by the Senate and is understood by the Executive to be removable by the President at will. Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit. Thus, in its joint [1233] issuance of the metrics and standards with the FRA, Amtrak acted as a governmental entity for purposes of the Constitution's separation of powers provisions. And that exercise of governmental power must be consistent with the design and requirements of the Constitution, including those provisions relating to the separation of powers.
Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak "shall be operated and managed as a for profit corporation" and "is not a department, agency, or instrumentality of the United States Government." §§ 24301(a)(2)-(3). In light of that statutory language, respondent asserts, Amtrak cannot exercise the joint authority entrusted to it and the FRA by § 207(a).
On that point this Court's decision in Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), provides necessary instruction. In Lebron, Amtrak prohibited an artist from installing a politically controversial display in New York City's Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that "its charter's disclaimer of agency status prevent[ed] it from being considered a Government entity." Id., at 392, 115 S.Ct. 961. The Court rejected this contention, holding "it is not for Congress to make the final determination of Amtrak's status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions." Ibid. To hold otherwise would allow the Government "to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form." Id., at 397, 115 S.Ct. 961. Noting that Amtrak "is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees," id., at 398, 115 S.Ct. 961, and that the Government exerts its control over Amtrak "not as a creditor but as a policymaker," the Court held Amtrak "is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution." Id., at 394, 399, 115 S.Ct. 961.
Lebron teaches that, for purposes of Amtrak's status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress' disclaimer of Amtrak's governmental status. Lebron involved a First Amendment question, while in this case the challenge is to Amtrak's joint authority to issue the metrics and standards. But "[t]he structural principles secured by the separation of powers protect the individual as well." Bond v. United States, 564 U.S. ___, ___, 131 S.Ct. 2355, 2365, 180 L.Ed.2d 269 (2011). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case.
Because the Court of Appeals' decision was based on the flawed premise that Amtrak should be treated as a private [1234] entity, that opinion is now vacated. On remand, the Court of Appeals, after identifying the issues that are properly preserved and before it, will then have the instruction of the analysis set forth here. Respondent argues that the selection of Amtrak's president, who is appointed "not by the President ... but by the other eight Board Members," "call[s] into question Amtrak's structure under the Appointments Clause," Brief for Respondent 42; that § 207(d)'s arbitrator provision "is a plain violation of the nondelegation principle" and the Appointments Clause requiring invalidation of § 207(a), id., at 26; and that Congress violated the Due Process Clause by "giv[ing] a federally chartered, nominally private, for-profit corporation regulatory authority over its own industry," id., at 43. Petitioners, in turn, contend that "the metrics and standards do not reflect the exercise of `rulemaking' authority or permit Amtrak to `regulate other private entities,'" and thus do not raise nondelegation concerns. Reply Brief 5 (internal citation omitted). Because "[o]urs is a court of final review and not first view," Zivotofsky v. Clinton, 566 U.S. ___, ___, 132 S.Ct. 1421, 1430, 182 L.Ed.2d 423 (2012) (internal quotation marks omitted), those issues — to the extent they are properly before the Court of Appeals — should be addressed in the first instance on remand.
The judgment of the Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice ALITO, concurring.
I entirely agree with the Court that Amtrak is "a federal actor or instrumentality," as far as the Constitution is concerned. Ante, at 1233. "Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit." Ante, at 1232. The Government even "specif[ies] many of its day-to-day operations" and "for all practical purposes, set[s] and supervise[s] its annual budget." Ante, at 1233. The District of Columbia Circuit understandably heeded 49 U.S.C. § 24301(a)(3), which proclaims that Amtrak "is not a department, agency, or instrumentality of the United States Government," but this statutory label cannot control for constitutional purposes. (Emphasis added). I therefore join the Court's opinion in full. I write separately to discuss what follows from our judgment.
This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability.
When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern. Given this incentive to regulate without saying so, everyone should pay close attention when Congress "sponsor[s] corporations that it specifically designate[s] not to be agencies or establishments of the United States Government." Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 390, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).
Recognition that Amtrak is part of the Federal Government raises a host of constitutional questions.
I begin with something that may seem mundane on its face but that has a significant [1235] relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 ("[A]ll executive and judicial Officers ... shall be bound by Oath or Affirmation, to support this Constitution"); Art. II, § 3, cl. 6 (The President "shall Commission all the Officers of the United States"). There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) ("[A] Representative... does not become a member of the House until he takes the oath of office"); 15 Op. Atty. Gen. 280, 281 (1877) (similar).[1] And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156, 2 L.Ed. 60 (1803); see also id., at 179 (noting the importance of an oath).
Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.
Here, respondent tells the Court that "Amtrak's board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority." Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 1233, those who run it need to satisfy basic constitutional requirements.
I turn next to the Passenger Rail Investment and Improvement Act of 2008's (PRIIA) arbitration provision. 122 Stat. 4907. Section 207(a) of the PRIIA provides that "the Federal Railroad Administration [(FRA)] and Amtrak shall jointly... develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations." Id., at 4916. In addition, § 207(c) commands that "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate [those] metrics and standards ... into their access and service agreements." Under § 213(a) of the PRIIA, moreover, "the metrics and standards also may play a role in prompting investigations by the [Surface Transportation Board (STB)] and in subsequent enforcement actions." Ante, at 1229.
This scheme is obviously regulatory. Section 207 provides that Amtrak and the FRA "shall jointly" create new standards, cf. e.g., 12 U.S.C. § 1831m(g)(4)(B) ("The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph"), and that Amtrak and private rail carriers "shall incorporate" those standards into their agreements whenever "practicable," cf. e.g., BP America Production Co. v. Burton, 549 U.S. 84, 88, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006) (characterizing a command to "`audit and reconcile, to the extent practicable, all current and past lease accounts'" as creating "duties" for the Secretary of the Interior (quoting 30 U.S.C. § 1711(c)(1))). The fact that private rail carriers sometimes may be required by federal law to [1236] include the metrics and standards in their contracts by itself makes this a regulatory scheme.
"As is often the case in administrative law," moreover, "the metrics and standards lend definite regulatory force to an otherwise broad statutory mandate." 721 F.3d 666, 672 (C.A.D.C.2013). Here, though the nexus between regulation, statutory mandate, and penalty is not direct (for, as the Government explains, there is a pre-existing requirement that railroads give preference to Amtrak, see Brief for Petitioners 31-32 (citing 49 U.S.C. §§ 24308(c), (f))), the metrics and standards inherently have a "coercive effect," Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), on private conduct. Even the United States concedes, with understatement, that there is "perhaps some incentivizing effect associated with the metrics and standards." Brief for Petitioners 30. Because obedience to the metrics and standards materially reduces the risk of liability, railroads face powerful incentives to obey. See Bennett, supra, at 169-171, 117 S.Ct. 1154. That is regulatory power.
The language from § 207 quoted thus far should raise red flags. In one statute, Congress says Amtrak is not an "agency." 49 U.S.C. § 24301(a)(3). But then Congress commands Amtrak to act like an agency, with effects on private rail carriers. No wonder the D.C. Circuit ruled as it did.
The oddity continues, however. Section 207(d) of the PRIIA also provides that if the FRA and Amtrak cannot agree about what the regulatory standards should say, then "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." 122 Stat. 4917. The statute says nothing more about this "binding arbitration," including who the arbitrator should be.
Looking to Congress' use of the word "arbitrator," respondent argues that because the arbitrator can be a private person, this provision by itself violates the private nondelegation doctrine. The United States, for its part, urges the Court to read the term "arbitrator" to mean "public arbitrator" in the interests of constitutional avoidance.
No one disputes, however, that the arbitration provision is fair game for challenge, even though no arbitration occurred. The obvious purpose of the arbitration provision was to force Amtrak and the FRA to compromise, or else a third party would make the decision for them. The D.C. Circuit is correct that when Congress enacts a compromise-forcing mechanism, it is no good to say that the mechanism cannot be challenged because the parties compromised. See 721 F.3d, at 674. "[S]tack[ing] the deck in favor of compromise" was the whole point. Ibid. Unsurprisingly, this Court has upheld standing to bring a separation-of-powers challenge in comparable circumstances. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264-265, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) ("[T]his `personal injury' to respondents is `fairly traceable' to the Board of Review's veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors" (emphasis added)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 512, n. 12, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) ("We cannot assume ... that the Chairman would have made the same appointments acting alone").
[1237] As to the merits of this arbitration provision, I agree with the parties: If the arbitrator can be a private person, this law is unconstitutional. Even the United States accepts that Congress "cannot delegate regulatory authority to a private entity." 721 F.3d, at 670. Indeed, Congress, vested with enumerated "legislative Powers," Art. I, § 1, cannot delegate its "exclusively legislative" authority at all. Wayman v. Southard, 10 Wheat. 1, 42-43, 6 L.Ed. 253 (1825) (Marshall, C.J.). The Court has invalidated statutes for that very reason. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see also Mistretta v. United States, 488 U.S. 361, 373, n. 7, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (citing, inter alia, Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 646, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980)).
The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha, 462 U.S. 919, 959, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution's deliberative process was viewed by the Framers as a valuable feature, see, e.g., Manning, Lawmaking Made Easy, 10 Green Bag 2d 202 (2007) ("[B]icameralism and presentment make lawmaking difficult by design" (citing, inter alia, The Federalist No. 62, p. 378 (J. Madison), and No. 63, at 443-444 (A. Hamilton))), not something to be lamented and evaded.
Of course, this Court has "`almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 474-475, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting Mistretta, supra, at 416, 109 S.Ct. 647 (SCALIA, J., dissenting)). But the inherent difficulty of line-drawing is no excuse for not enforcing the Constitution. Rather, the formal reason why the Court does not enforce the nondelegation doctrine with more vigilance is that the other branches of Government have vested powers of their own that can be used in ways that resemble lawmaking. See, e.g., Arlington v. FCC, 569 U.S. ___, ___-___, n. 4, 133 S.Ct. 1863, 1873, n. 4, ___ L.Ed.2d ___ (2013) (explaining that agency rulemakings "are exercises of — indeed, under our constitutional structure they must be exercises of — the `executive Power'" (quoting Art. II, § 1, cl. 1)). Even so, "the citizen confronting thousands of pages of regulations — promulgated by an agency directed by Congress to regulate, say, `in the public interest' — can perhaps be excused for thinking that it is the agency really doing the legislating." 569 U.S., at ___-___, 133 S.Ct., at 1879 (ROBERTS, C.J., dissenting).
When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with "legislative Powers." Art. I, § 1. Nor are they vested with the "executive Power," Art. II, § 1, cl. 1, which belongs to the President. Indeed, it raises "[d]ifficult and fundamental questions" about "the delegation of Executive power" when Congress authorizes citizen suits. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 197, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (KENNEDY, J., concurring). A citizen suit to enforce existing law, however, [1238] is nothing compared to delegated power to create new law. By any measure, handing off regulatory power to a private entity is "legislative delegation in its most obnoxious form." Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936).
For these reasons, it is hard to imagine how delegating "binding" tie-breaking authority to a private arbitrator to resolve a dispute between Amtrak and the FRA could be constitutional. No private arbitrator can promulgate binding metrics and standards for the railroad industry. Thus, if the term "arbitrator" refers to a private arbitrator, or even the possibility of a private arbitrator, the Constitution is violated. See 721 F.3d, at 674 ("[T]hat the recipients of illicitly delegated authority opted not to make use of it is no antidote. It is Congress's decision to delegate that is unconstitutional" (citing Whitman, supra, at 473, 121 S.Ct. 903)).
As I read the Government's briefing, it does not dispute any of this (other than my characterization of the PRIIA as regulatory, which it surely is). Rather than trying to defend a private arbitrator, the Government argues that the Court, for reasons of constitutional avoidance, should read the word "arbitrator" to mean "public arbitrator." The Government's argument, however, lurches into a new problem: Constitutional avoidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional.
Here, the Government's argument that the word "arbitrator" does not mean "private arbitrator" is in some tension with the ordinary meaning of the word. Although Government arbitrators are not unheard of, we usually think of arbitration as a form of "private dispute resolution." See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 685, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010).
Likewise, the appointment of a public arbitrator here would raise serious questions under the Appointments Clause. Unless an "inferior Office[r]" is at issue, Article II of the Constitution demands that the President appoint all "Officers of the United States" with the Senate's advice and consent. Art. II, § 2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people. See Free Enterprise Fund, 561 U.S., at 497-498, 130 S.Ct. 3138 (citing The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton)). The Court has held that someone "who exercis[es] significant authority pursuant to the laws of the United States" is an "Officer," Buckley v. Valeo, 424 U.S. 1, 126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), and further that an officer who acts without supervision must be a principal officer, see Edmond v. United States, 520 U.S. 651, 663, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ("[W]e think it evident that `inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate"). While some officers may be principal even if they have a supervisor, it is common ground that an officer without a supervisor must be principal. See id., at 667, 117 S.Ct. 1573 (Souter, J., concurring in part and concurring in judgment).
Here, even under the Government's public-arbitrator theory, it looks like the arbitrator would be making law without supervision — again, it is "binding arbitration." Nothing suggests that those words mean anything other than what they say. This means that an arbitrator could set the metrics and standards that "shall" become [1239] part of a private railroad's contracts with Amtrak whenever "practicable." As to that "binding" decision, who is the supervisor? Inferior officers can do many things, but nothing final should appear in the Federal Register unless a Presidential appointee has at least signed off on it. See 75 Fed.Reg. 26839 (2010) (placing the metrics and standards in the Federal Register); Edmond, supra, at 665, 117 S.Ct. 1573.
Finally, the Board of Amtrak, and, in particular, Amtrak's president, also poses difficult constitutional problems. As the Court observes, "Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. These eight Board members, in turn, select Amtrak's president." Ante, at 1231 (citation omitted). In other words, unlike everyone else on the Board, Amtrak's president has not been appointed by the President and confirmed by the Senate.
As explained above, accountability demands that principal officers be appointed by the President. See Art. II, § 2, cl. 2. The President, after all, must have "the general administrative control of those executing the laws," Myers v. United States, 272 U.S. 52, 164, 47 S.Ct. 21, 71 L.Ed. 160 (1926), and this principle applies with special force to those who can "exercis[e] significant authority" without direct supervision, Buckley, supra, at 126, 96 S.Ct. 612; see also Edmond, supra, at 663, 117 S.Ct. 1573. Unsurprisingly then, the United States defends the non-Presidential appointment of Amtrak's president on the ground that the Amtrak president is merely an inferior officer. Given Article II, for the Government to argue anything else would be surrender.
This argument, however, is problematic. Granted, a multimember body may head an agency. See Free Enterprise Fund, supra, at 512-513, 130 S.Ct. 3138. But those who head agencies must be principal officers. See Edmond, supra, at 663, 117 S.Ct. 1573. It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer.
The Government's response is tucked away in a footnote. It contends that because Amtrak's president serves at the pleasure of the other Board members, he is only an inferior officer. See Reply Brief for Petitioners 14, n. 6. But the Government does not argue that the president of Amtrak cannot cast tie-breaking votes. Assuming he can vote when the Board of Directors is divided, it makes no sense to think that the side with which the president agrees will demand his removal.
In any event, even assuming that Amtrak's president could be an inferior officer, there would still be another problem: Amtrak's Board may lack constitutional authority to appoint inferior officers. The Appointments Clause provides an exception from the ordinary rule of Presidential appointment for "inferior Officers," but that exception has accountability limits of its own, namely, that Congress may only vest the appointment power "in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, § 2, cl. 2. Although a multimember body like Amtrak's Board can head a Department, here it is not at all clear that Amtrak is a Department.
[1240] A "Department" may not be "subordinate to or contained within any other such component" of the Executive Branch. Free Enterprise Fund, 561 U.S., at 511, 130 S.Ct. 3138. As explained above, however, in jointly creating metrics and standards, Amtrak may have to give way to an arbitrator appointed by the STB. Does that mean that Amtrak is "subordinate to" the STB? See also 49 U.S.C. § 24308 (explaining the STB's role in disputes between Amtrak and rail carriers). At the same time, the Secretary of Transportation sits on Amtrak's Board and controls some aspects of Amtrak's relationship with rail carriers. See, e.g., §§ 24302(a)(1), 24309(d)(2). The Secretary of Transportation also has authority to exempt Amtrak from certain statutory requirements. See § 24305(f)(4). Does that mean that Amtrak is "subordinate to or contained within" the Department of Transportation? (The STB, of course, also may be "subordinate to or contained within" the Department of Transportation. If so, this may further suggest that that Amtrak is not a Department, and also further undermine the STB's ability to appoint an arbitrator). All of these are difficult questions.
In sum, while I entirely agree with the Court that Amtrak must be regarded as a federal actor for constitutional purposes, it does not by any means necessarily follow that the present structure of Amtrak is consistent with the Constitution. The constitutional issues that I have outlined (and perhaps others) all flow from the fact that no matter what Congress may call Amtrak, the Constitution cannot be disregarded.
Justice THOMAS, concurring in the judgment.
We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question — indeed, the primary question the parties ask us to answer — is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom.
I agree with the Court that the proper disposition in this case is to vacate the decision below and to remand for further consideration of respondent's constitutional challenge to the metrics and standards. I cannot join the majority's analysis, however, because it fails to fully correct the errors that require us to vacate the Court of Appeals' decision. I write separately to describe the framework that I believe should guide our resolution of delegation challenges and to highlight serious constitutional defects in the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) that are properly presented for the lower courts' review on remand.
The Constitution does not vest the Federal Government with an undifferentiated "governmental power." Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," Art. I, § 1, "[t]he executive Power shall be vested in a President of the United States," Art. II, § 1, cl. 1, and "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may [1241] from time to time ordain and establish," Art. III, § 1.
These grants are exclusive. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (legislative power); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 496-497, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (executive power); Stern v. Marshall, 564 U.S. ___, ___-___, 131 S.Ct. 2594, 2608-2609, 180 L.Ed.2d 475 (2011) (judicial power). When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.
In addition to allocating power among the different branches, the Constitution identifies certain restrictions on the manner in which those powers are to be exercised. Article I requires, among other things, that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it...." Art. I, § 7, cl. 2. And although the Constitution is less specific about how the President shall exercise power, it is clear that he may carry out his duty to take care that the laws be faithfully executed with the aid of subordinates. Myers v. United States, 272 U.S. 52, 117, 47 S.Ct. 21, 71 L.Ed. 160 (1926), overruled in part on unrelated grounds in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935).
When the Court speaks of Congress improperly delegating power, what it means is Congress' authorizing an entity to exercise power in a manner inconsistent with the Constitution. For example, Congress improperly "delegates" legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power. See Whitman, supra, at 472, 121 S.Ct. 903. It also improperly "delegates" legislative power to itself when it authorizes itself to act without bicameralism and presentment. See, e.g., INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). And Congress improperly "delegates" — or, more precisely, authorizes the exercise of, see Perez v. Mortgage Bankers Assn., 135 S.Ct., at 1224-1225, 2015 WL 998535, at *24 (THOMAS, J., concurring in judgment) (noting that Congress may not "delegate" power it does not possess) — executive power when it authorizes individuals or groups outside of the President's control to perform a function that requires the exercise of that power. See, e.g., Free Enterprise Fund, supra.
In order to be able to adhere to the provisions of the Constitution that allocate and constrain the exercise of these powers, we must first understand their boundaries. Here, I do not purport to offer a comprehensive description of these powers. My purpose is to identify principles relevant to today's dispute, with an eye to offering guidance to the lower courts on remand. At issue in this case is the proper division between legislative and executive powers. An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution.
The allocation of powers in the Constitution is absolute, Perez, 135 S.Ct., at 1214-1218, 2015 WL 998535, at *15-17 (opinion of THOMAS, J.), but it does not follow that there is no overlap between the three categories of governmental power. Certain functions may be performed by two or more branches without either exceeding its [1242] enumerated powers under the Constitution. Resolution of claims against the Government is the classic example. At least when Congress waives its sovereign immunity, such claims may be heard by an Article III court, which adjudicates such claims by an exercise of judicial power. See Ex parte Bakelite Corp., 279 U.S. 438, 452, 49 S.Ct. 411, 73 L.Ed. 789 (1929). But Congress may also provide for an executive agency to adjudicate such claims by an exercise of executive power. See ibid. Or Congress may resolve the claims itself, legislating by special Act. See ibid. The question is whether the particular function requires the exercise of a certain type of power; if it does, then only the branch in which that power is vested can perform it. For example, although this Court has long recognized that it does not necessarily violate the Constitution for Congress to authorize another branch to make a determination that it could make itself, there are certain core functions that require the exercise of legislative power and that only Congress can perform. Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253 (1825) (distinguishing between those functions Congress must perform itself and those it may leave to another branch).
The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does not comprehend the discretion to formulate generally applicable rules of private conduct.
The idea that the Executive may not formulate generally applicable rules of private conduct emerged even before the theory of the separation of powers on which our Constitution was founded.
The idea has ancient roots in the concept of the "rule of law," which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. M. Vile, Constitutionalism and the Separation of Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968). The principle that a ruler must govern according to law "presupposes at least two distinct operations, the making of law, and putting it into effect." Vile, supra, at 24. Although it was originally thought "that the rule of law was satisfied if a king made good laws and always acted according to them," it became increasingly apparent over time that the rule of law demanded that the operations of "making" law and of "putting it into effect" be kept separate. W. Gwyn, The Meaning of the Separation of Powers 35 (1965); see also id., at 8-9. But when the King's power was at its height, it was still accepted that his "principal duty ... [was], to govern his people according to law." 1 W. Blackstone, Commentaries on the Laws of England 226 (1765) (Commentaries) (emphasis added).
An early expression of this idea in England is seen in the "constitutional" law concerning crown proclamations. Even before a more formal separation of powers came about during the English Civil War, it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects. P. Hamburger, Is Administrative Law Unlawful? 33-34 (2014) (Hamburger). This power could be exercised by the King only in conjunction with Parliament and was exercised through statutes. Ibid.; see also M. Hale, The Prerogatives of the King 141, 171-172 (D. Yale ed. 1976). The King [1243] might participate in "the legislative power" by giving his "assent" to laws created by the "concurrence" of "lords and commons assembled in parliament," but he could not of his own accord "make a law or impose a charge." Id., at 141.
In 1539, King Henry VIII secured what might be called a "delegation" of the legislative power by prevailing on Parliament to pass the Act of Proclamations. Hamburger 35-36. That Act declared that the King's proclamations would have the force and effect of an Act of Parliament. Id., at 37. But the Act did not permit the King to deprive his subjects of their property, privileges and franchises, or their lives, except as provided by statutory or common law. Id., at 37-38. Nor did the Act permit him to invalidate "`any acts, [or] common laws standing at [that] time in strength and force.'" Id., at 38 (quoting An Act that Proclamations Made by the King Shall be Obeyed, 31 Hen. VIII, ch. 8, in Eng. Stat. at Large 263 (1539)).
Even this limited delegation of lawmaking power to the King was repudiated by Parliament less than a decade later. Hamburger 38. Reflecting on this period in history, David Hume would observe that, when Parliament "gave to the king's proclamation the same force as to a statute enacted by parliament," it "made by one act a total subversion of the English constitution." 3 D. Hume, The History of England from the Invasion of Julius Ceasar to the Revolution in 1688, p. 266 (1983). By the 17th century, when English scholars and jurists began to articulate a more formal theory of the separation of powers, delegations of the type afforded to King Henry VIII were all but unheard of. Hale, supra, at 172-173.
This is not to say that the Crown did not endeavor to exercise the power to make rules governing private conduct. King James I made a famous attempt, see Perez, 135 S.Ct., at 1219-1221, 2015 WL 998535, at *19-20 (opinion of THOMAS, J.), prompting the influential jurist Chief Justice Edward Coke to write that the King could not "change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament." Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K.B. 1611). Coke associated this principle with Chapter 39 of the Magna Carta,[2] which he understood to guarantee that no subject would be deprived of a private right — that is, a right of life, liberty, or property — except in accordance with "the law of the land," which consisted only of statutory and common law. Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1688 (2012). When the King attempted to fashion rules of private conduct unilaterally, as he did in the Case of Proclamations, the resulting enforcement action could not be said to accord with "the law of the land."
John Locke echoed this view. "[F]reedom of men under government," he wrote, "is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it... and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man." J. Locke, Second Treatise of Civil Government § 22, p. 13 (J. Gough ed. 1947) (Locke) (emphasis added). It followed that this freedom required that the power to make the standing rules and the power to enforce them not lie in the same hands. See id., § 143, at 72. He further [1244] concluded that "[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others." Id., § 141, at 71.[3]
William Blackstone, in his Commentaries, likewise maintained that the English Constitution required that no subject be deprived of core private rights except in accordance with the law of the land. See 1 Commentaries 129, 134, 137-138. He defined a "law" as a generally applicable "rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Id., at 44 (internal quotation marks omitted). And he defined a tyrannical government as one in which "the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men," for "wherever these two powers are united together, there can be no public liberty." Id., at 142. Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, id., at 156, he thought a delegation of lawmaking power to be "disgrace[ful]," 4 id., at 424; see also Hamburger 39, n. 17.
These principles about the relationship between private rights and governmental power profoundly influenced the men who crafted, debated, and ratified the Constitution. The document itself and the writings surrounding it reflect a conviction that the power to make the law and the power to enforce it must be kept separate, particularly with respect to the regulation of private conduct.
The Framers' dedication to the separation of powers has been well-documented, if only half-heartedly honored. See, e.g., Mistretta v. United States, 488 U.S. 361, 380-381, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Most famously, in The Federalist 47, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than" the separation of powers. The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, ... may justly be pronounced the very definition of tyranny." Ibid.; see also Perez, 135 S.Ct., at 1216-1218, 2015 WL 998535, at *16-17 (opinion of THOMAS, J.).
This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the "gradual concentration of the several powers in the same department." The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional structure, [1245] so that the branches could defend their powers on an ongoing basis. Ibid.; see also Perez, 135 S.Ct., at 1216-1217, 2015 WL 998535, at *16 (opinion of THOMAS, J.).
In this sense, the founding generation did not subscribe to Blackstone's view of parliamentary supremacy. Parliament's violations of the law of the land had been a significant complaint of the American Revolution, Chapman & McConnell, supra, at 1699-1703. And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law. Perez, 135 S.Ct., at 1214-1217, 2015 WL 998535, at *15-16 (opinion of THOMAS, J.). James Wilson explained the Constitution's break with the legislative supremacy model at the Pennsylvania ratification convention:
"Sir William Blackstone will tell you, that in Britain ... the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain....
"To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states." 2 J. Elliot, Debates on the Federal Constitution 432 (2d ed. 1863); see also 4 id., at 63 (A. Maclaine) (contrasting Congress, which "is to be guided by the Constitution" and "cannot travel beyond its bounds," with the Parliament described in Blackstone's Commentaries).
As an illustration of Blackstone's contrasting model of sovereignty, Wilson cited the Act of Proclamations, by which Parliament had delegated legislative power to King Henry VIII. 2 id., at 432 (J. Wilson); see supra, at 1243.
At the center of the Framers' dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that "`[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'"). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: "to have a standing rule to live by ... made by the legislative power," and to be free from "the inconstant, uncertain, unknown, arbitrary will of another man." Locke § 22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free. See D. Currie, The Constitution in the Supreme Court: The First One Hundred Years, 1789-1888, p. 272, and n. 268 (1985).[4]
This history confirms that the core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make "law" in the Blackstonian sense of generally applicable rules of private conduct.
Even with these sound historical principles in mind, classifying governmental [1246] power is an elusive venture. Wayman, 10 Wheat., at 43; The Federalist No. 37, at 228 (J. Madison). But it is no less important for its difficulty. The "check" the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. Perez, 135 S.Ct., at 1219-1221, 2015 WL 998535, at *19-20 (opinion of THOMAS, J.). We may not — without imperiling the delicate balance of our constitutional system — forgo our judicial duty to ascertain the meaning of the Vesting Clauses and to adhere to that meaning as the law. Perez, 135 S.Ct., at 1219-1221, 2015 WL 998535, at *19-21.
We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund, 561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991), although probably not as often as we should, see, e.g., Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Our record with regard to legislative power has been far worse.
We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body, Whitman, 531 U.S., at 472, 121 S.Ct. 903, but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out "an intelligible principle" to guide the rulemaker's discretion. Ibid. Although the Court may never have intended the boundless standard the "intelligible principle" test has become, it is evident that it does not adequately reinforce the Constitution's allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.
The Court first announced the intelligible principle test in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928). That case involved a challenge to a tariff assessed on a shipment of barium dioxide. Id., at 400, 48 S.Ct. 348. The rate of the tariff had been set by proclamation of the President, pursuant to the so-called flexible tariff provision of the Tariff Act of 1922. Ibid. That provision authorized the President to increase or decrease a duty set by the statute if he determined that the duty did not "`equalize ... differences in costs of production [of the item to which the duty applied] in the United States and the principal competing country.'" Id., at 401, 48 S.Ct. 348 (quoting 19 U.S.C. § 154 (1925 ed.)). The importer of the barium dioxide challenged the provision as an unconstitutional delegation of legislative power to the President. 276 U.S., at 404, 48 S.Ct. 348. Agreeing that Congress could not delegate legislative power, the Court nevertheless upheld the Act as constitutional, setting forth the now-famous formulation: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id., at 409, 48 S.Ct. 348.
Though worded broadly, the test rested on a narrow foundation. At the time J. W. Hampton was decided, most "delegations" by Congress to the Executive, including [1247] the delegation at issue in that case, had taken the form of conditional legislation. See Marshall Field & Co. v. Clark, 143 U.S. 649, 683-689, 12 S.Ct. 495, 36 L.Ed. 294 (1892). That form of legislation "makes the suspension of certain provisions and the going into operation of other provisions of an Act of Congress depend upon the action of the President based upon the occurrence of subsequent events, or the ascertainment by him of certain facts, to be made known by his proclamation." Id., at 683, 12 S.Ct. 495.
The practice of conditional legislation dates back at least to the Third Congress in 1794. Id., at 683-689, 12 S.Ct. 495 (collecting statutes). It first came before the Court in Cargo of Brig Aurora v. United States, 7 Cranch 382, 3 L.Ed. 378 (1813). There, the Court considered whether a Presidential proclamation could, by declaring that France had ceased to violate the neutral commerce of the United States, reinstate a legislative Act embargoing British goods. Id., at 384, 388. The Court concluded that the proclamation was effective, seeing "no sufficient reaso[n] why the legislature should not exercise its discretion ... either expressly or conditionally, as their judgment should direct." Id., at 388.
At least as defined by the Court in Field, the practice of conditional legislation does not seem to call on the President to exercise a core function that demands an exercise of legislative power. Congress creates the rule of private conduct, and the President makes the factual determination that causes that rule to go into effect. That type of factual determination seems similar to the type of factual determination on which an enforcement action is conditioned: Neither involves an exercise of policy discretion, and both are subject to review by a court. See Union Bridge Co. v. United States, 204 U.S. 364, 386, 27 S.Ct. 367, 51 L.Ed. 523 (1907) (explaining that, when the Secretary of War determined whether bridges unreasonably obstruct navigation, he "could not be said to exercise strictly legislative ... power any more, for instance, than it could be said that Executive officers exercise such power when, upon investigation, they ascertain whether a particular applicant for a pension belongs to a class of persons who, under general rules prescribed by Congress, are entitled to pensions").
As it happens, however, conditional statutes sometimes did call for the President to make at least an implicit policy determination. For example, a 1794 provision entitled "An Act to authorize the President of the United States to lay, regulate and revoke Embargoes," ch. 41, 1 Stat. 372, called on the President to impose an embargo on shipping "whenever, in his opinion, the public safety shall so require...." Ibid. The statutes at issue in Field and J.W. Hampton could similarly be viewed as calling for built-in policy judgments. See Schoenbrod, The Delegation Doctrine: Could The Court Give It Substance? 83 Mich. L.Rev. 1223, 1263-1264 (1985).[5] [1248] Such delegations of policy determinations pose a constitutional problem because they effectively permit the President to define some or all of the content of that rule of conduct. He may do so expressly — by setting out regulations specifying what conduct jeopardizes "the public safety," for example — or implicitly — by drawing distinctions on an ad hoc basis. In either event, he does so based on a policy judgment that is not reviewable by the courts, at least to the extent that the judgment falls within the range of discretion permitted him by the law. See id., at 1255-1260.
The existence of these statutes should not be taken to suggest that the Constitution, as originally understood, would permit such delegations. The 1794 embargo statute involved the external relations of the United States, so the determination it authorized the President to make arguably did not involve an exercise of core legislative power. See id., at 1260-1263 (distinguishing the tariff statute at issue in Field and J.W. Hampton on these grounds).[6] Moreover, the statute was never subjected to constitutional scrutiny. And when a statute of its kind — that is, a tariff statute calling for an exercise of policy judgment — finally came before this Court for consideration in Field, the Court appeared to understand the statute as calling for no more than a factual determination. 143 U.S., at 693, 12 S.Ct. 495. The Court thus did not in that case endorse the principle that the Executive may fashion generally applicable rules of private conduct and appears not to have done so until the 20th century.
More to the point, J.W. Hampton can be read to adhere to the "factual determination" rationale from Field. The Court concluded its delegation analysis in J.W. Hampton not with the "intelligible principle" language, but by citing to Field for the proposition that the "Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President." 276 U.S., at 410, 48 [1249] S.Ct. 348 (emphasis added); Field, 143 U.S., at 692, 12 S.Ct. 495 (explaining that an Act did not "in any real sense, invest the President with the power of legislation"). Congress had created a "named contingency," and the President "was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect." J.W. Hampton, supra, at 410-411, 48 S.Ct. 348.[7]
The analysis in Field and J.W. Hampton may have been premised on an incorrect assessment of the statutes before the Court, see n. 4, supra, but neither purported to define executive power as including the discretion to make generally applicable rules governing private conduct. To the extent that our modern jurisprudence treats them as sanctioning the "delegation" of such power, it misunderstands their historical foundations and expands the Court's holdings.
It is nevertheless true that, at the time J.W. Hampton was decided, there was a growing trend of cases upholding statutes pursuant to which the Executive exercised the power of "making ... subordinate rules within prescribed limits." Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see also id., at 429, 55 S.Ct. 241 (collecting cases). These cases involved executive power to make "binding rules of conduct," and they were found valid "as subordinate rules ... [when] within the framework of the policy which the legislature ha[d] sufficiently defined." Id., at 428-429, 55 S.Ct. 241. To the extent that these cases endorsed authorizing the Executive to craft generally applicable rules of private conduct, they departed from the precedents on which they purported to rely.
The key decision to which these cases purport to trace their origin is Wayman, 10 Wheat. 1, but that decision does not stand for the proposition those cases suggest. Although it upheld a statute authorizing courts to set rules governing the execution of their own judgments, id., at 50, its reasoning strongly suggests that rules of private conduct were not the proper subject of rulemaking by the courts. Writing for the Court, Chief Justice Marshall surveyed a number of choices that could be left to rulemaking by the courts, explaining that they concerned only "the regulation of the conduct of the officer of the Court in giving effect to its judgments." Id., at 45. When it came to specifying "the mode of obeying the mandate of a writ," however, he lamented that "so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide." Id., at 46.
This important passage reflects two premises that Chief Justice Marshall took for granted, but which are disregarded in later decisions relying on this precedent: First, reflected in his discussion of "blending" permissible with impermissible discretion, is the premise that it is not the [1250] quantity, but the quality, of the discretion that determines whether an authorization is constitutional. Second, reflected in the contrast Chief Justice Marshall draws between the two types of rules, is the premise that the rules "for which the legislature must expressly and directly provide" are those regulating private conduct rather than those regulating the conduct of court officers.
Thus, when Chief Justice Marshall spoke about the "difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its Courts," ibid., he did not refer to the difficulty in discerning whether the Legislature's policy guidance is "sufficiently defined," see Panama Refining, supra, at 429, 55 S.Ct. 241, but instead the difficulty in discerning which rules affected substantive private rights and duties and which did not. We continue to wrestle with this same distinction today in our decisions distinguishing between substantive and procedural rules both in diversity cases and under the Rules Enabling Act. See, e.g., Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 406-407, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ("In the Rules Enabling Act, Congress authorized this Court to promulgate rules of procedure subject to its review, 28 U.S.C. § 2072(a), but with the limitation that those rules `shall not abridge, enlarge or modify any substantive right,' § 2072(b)").[8]
Today, the Court has abandoned all pretense of enforcing a qualitative distinction between legislative and executive power. To the extent that the "intelligible principle" test was ever an adequate means of enforcing that distinction, it has been decoupled from the historical understanding of the legislative and executive powers and thus does not keep executive "lawmaking" within the bounds of inherent executive discretion. See Whitman, 531 U.S., at 487, 121 S.Ct. 903 (THOMAS, J., concurring) ("I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power"). Perhaps we were led astray by the optical illusion caused by different branches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great. See, e.g., Loving v. United States, 517 U.S. 748, 773, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) ("Separation-of-powers principles are vindicated, not disserved, by measured cooperation between two political branches of the Government, each contributing to a lawful objective through its own processes"). Or perhaps we deliberately departed from the separation, bowing to the exigencies of modern Government that were so often cited in cases upholding challenged delegations of rulemaking authority.[9] See, [1251] e.g., Mistretta, 488 U.S., at 372, 109 S.Ct. 647 ("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives").
For whatever reason, the intelligible principle test now requires nothing more than a minimal degree of specificity in the instructions Congress gives to the Executive when it authorizes the Executive to make rules having the force and effect of law. And because the Court has "`almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law,'" Whitman, supra, at 474-475, 121 S.Ct. 903 (majority opinion) (quoting Mistretta, supra, at 416, 109 S.Ct. 647 (SCALIA, J., dissenting)), the level of specificity it has required has been very minimal indeed, see 531 U.S., at 474, 121 S.Ct. 903 (collecting cases upholding delegations to regulate in the "public interest"). Under the guise of the intelligible-principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments about what is "unfair" or "unnecessary." See, e.g., American Power & Light Co. v. SEC, 329 U.S. 90, 104-105, 67 S.Ct. 133, 91 L.Ed. 103 (1946). It has permitted the Executive to make trade-offs between competing policy goals. See, e.g., Yakus v. United States, 321 U.S. 414, 420, 423-426, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (approving authorization for agency to set prices of commodities at levels that "will effectuate the [sometimes conflicting] purposes of th[e] Act"); see also Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 686-687, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring in judgment) ("It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge"). It has even permitted the Executive to decide which policy goals it wants to pursue. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218-223, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (concluding that Congress gave the Environmental Protection Agency (EPA) discretion to decide whether it should consider costs in making certain rules). And it has given sanction to the Executive to craft significant rules of private conduct. See, e.g., Whitman, 531 U.S., at 472-476, 121 S.Ct. 903 (approving delegation to EPA to set national standards for air quality); see also id., at 488-489, 121 S.Ct. 903 (Stevens, J., concurring in part and concurring in judgment) (arguing that the Clean Air Act effects a delegation of legislative power because it authorizes EPA to make prospective, generally applicable rules of conduct).
Our reluctance to second-guess Congress on the degree of policy judgment is understandable; our mistake lies in assuming that any degree of policy judgment is permissible when it comes to establishing generally applicable rules governing private conduct. To understand the "intelligible principle" test as permitting Congress to delegate policy judgment in this context is to divorce that test from its history. It may never be possible perfectly to distinguish between legislative and executive power, but that does not mean we may look the other way when the Government [1252] asks us to apply a legally binding rule that is not enacted by Congress pursuant to Article I.
We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power. I accept that this would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable. In anticipating that result and accepting it, I am in good company. John Locke, for example, acknowledged that a legislative body "is usually too numerous, and so too slow for the dispatch requisite to execution." Locke § 160, at 80. But he saw that as a benefit for legislation, for he believed that the creation of rules of private conduct should be an irregular and infrequent occurrence. See id., § 143, at 72. The Framers, it appears, were inclined to agree. As Alexander Hamilton explained in another context, "It may perhaps be said that the power of preventing bad laws includes that of preventing good ones.... But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments." The Federalist No. 73, at 443-444. I am comfortable joining his conclusion that "[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." Id., at 444.
Although the majority corrects an undoubted error in the framing of the delegation dispute below, it does so without placing that error in the context of the constitutional provisions that govern respondent's challenge to § 207 of the PRIIA.
Until the case arrived in this Court, the parties proceeded on the assumption that Amtrak is a private entity, albeit one subject to an unusual degree of governmental control.[10] The Court of Appeals agreed. 721 F.3d 666, 674-677 (C.A.D.C.2013). Because it also concluded that Congress delegated regulatory power to Amtrak, id., at 670-674, and because this Court has held that delegations of regulatory power to private parties are impermissible, Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), it held the delegation to be unconstitutional, 721 F.3d, at 677.
Although no provision of the Constitution expressly forbids the exercise of governmental power by a private entity, our so-called "private nondelegation doctrine" flows logically from the three Vesting Clauses. Because a private entity is neither Congress, nor the President or one of his agents, nor the Supreme Court or an inferior court established by Congress, the Vesting Clauses would categorically preclude it from exercising the legislative, executive, or judicial powers of the Federal Government. In short, the "private non-delegation doctrine" is merely one application of the provisions of the Constitution that forbid Congress to allocate power to an ineligible entity, whether governmental or private.
[1253] For this reason, a conclusion that Amtrak is private — that is, not part of the Government at all — would necessarily mean that it cannot exercise these three categories of governmental power. But the converse is not true: A determination that Amtrak acts as a governmental entity in crafting the metrics and standards says nothing about whether it properly exercises governmental power when it does so. An entity that "was created by the Government, is controlled by the Government, and operates for the Government's benefit," ante, at 1232 (majority opinion), but that is not properly constituted to exercise a power under one of the Vesting Clauses, is no better qualified to be a delegatee of that power than is a purely private one. To its credit, the majority does not hold otherwise. It merely refutes the Court of Appeals' premise that Amtrak is private. But this answer could be read to suggest, wrongly, that our conclusion about Amtrak's status has some constitutional significance for "delegation" purposes.
The first step in the Court of Appeals' analysis on remand should be to classify the power that § 207 purports to authorize Amtrak to exercise. The second step should be to determine whether the Constitution's requirements for the exercise of that power have been satisfied.
Under the original understanding of the legislative and executive power, Amtrak's role in the creation of metrics and standards requires an exercise of legislative power because it allows Amtrak to decide the applicability of standards that provide content to generally applicable rules of private conduct.
Specifically, the metrics and standards alter the railroads' common-carrier obligations under 49 U.S.C. § 11101. Host railroads may enter into contracts with Amtrak under §§ 10908 and 24308 to fulfill their common-carrier obligations. The metrics and standards shape the types of contracts that satisfy the common-carrier obligations because § 207 provides that "Amtrak and its host rail carriers shall" include the metrics and standards in their contracts "[t]o the extent practicable." PRIIA § 207(c), 49 U.S.C. § 24101 (note) (emphasis added). As Justice ALITO explains, it matters little that the railroads may avoid incorporating the metrics and standards by arguing that incorporation is impracticable; the point is that they have a legal duty to try — a duty the substance of which is defined by the metrics and standards. See ante, at 1235-1236 (concurring opinion). And that duty is backed up by the Surface Transportation Board's coercive power to impose "reasonable terms" on host railroads when they fail to come to an agreement with Amtrak. § 24308(a)(2)(A)(ii). Presumably, when it is "practicable" to incorporate the metrics and standards, the Board is better positioned to deem such terms "reasonable" and to force them upon the railroads.
Although the Government's argument to the contrary will presumably change now that the Court has held that Amtrak is a governmental entity, it argued before this Court that Amtrak did not exercise meaningful power because other "governmental entities had sufficient control over the development and adoption of the metrics and standards." Brief for Petitioners 19-26. For support, the Government relied on two questionable precedents in which this Court held that Congress may grant private actors the power to determine whether a government regulation will go into effect: Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939), and United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 [1254] (1939). Those precedents reason that it does not require an exercise of legislative power to decide whether and when legally binding rules of private conduct will go into effect. Currin, supra, at 16-18, 59 S.Ct. 379; Rock Royal, supra, at 574-577, 59 S.Ct. 993. But as I have explained above, to the extent that this decision involves an exercise of policy discretion, it requires an exercise of legislative power. Supra, at 1251-1252. In any event, these precedents are directly contrary to our more recent holding that a discretionary "veto" necessarily involves an exercise of legislative power. See INS v. Chadha, 462 U.S., at 952-953, 103 S.Ct. 2764; see also id., at 987, 103 S.Ct. 2764 (White, J., dissenting) (noting that the power Congress reserved to itself was virtually identical to the power it conferred on private parties in Currin and Rock Royal). As such, Currin and Rock Royal have been discredited and lack any force as precedents.
Section 207 therefore violates the Constitution. Article I, § 1, vests the legislative power in Congress, and Amtrak is not Congress. The procedures that § 207 sets forth for enacting the metrics and standards also do not comply with bicameralism and presentment. Art. I, § 7. For these reasons, the metrics and standards promulgated under this provision are invalid.
I recognize, of course, that the courts below will be bound to apply our "intelligible principle" test. I recognize, too, that that test means so little that the courts are likely to conclude that § 207 calls for nothing more than the exercise of executive power. Having made that determination, the Court of Appeals must then determine whether Amtrak is constitutionally eligible to exercise executive power.
As noted, Article II of the Constitution vests the executive power in a "President of the United States of America." Art. II, § 1. Amtrak, of course, is not the President of the United States, but this fact does not immediately disqualify it from the exercise of executive power. Congress may authorize subordinates of the President to exercise such power, so long as they remain subject to Presidential control.
The critical question, then, is whether Amtrak is adequately subject to Presidential control. See Myers, 272 U.S., at 117, 47 S.Ct. 21. Our precedents treat appointment and removal powers as the primary devices of executive control, Free Enterprise Fund, 561 U.S., at 492, 130 S.Ct. 3138, and that should be the starting point of the Court of Appeals' analysis. As Justice ALITO's concurrence demonstrates, however, there are other constitutional requirements that the Court of Appeals should also scrutinize in deciding whether Amtrak is constitutionally eligible to exercise the power § 207 confers on it.
In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads' statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority's holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional [1255] structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.
[1] It is noteworthy that the first statute enacted by Congress was "An Act to regulate the Time and Manner of administering certain Oaths." Act of June 1, 1789, ch. 1, § 1, 1 Stat. 23.
[2] Chapter 39 of the 1215 Magna Carta declared that "[n]o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land." A. Howard, Magna Carta: Text and Commentary 43 (1964).
[3] Locke and his contemporaries also believed that requiring laws to be made in Parliament secured the common interest. W. Gwyn, The Meaning of the Separation of Powers 75 (1965). Parliament would assemble to do the business of legislation, but then its members would disperse to live as private citizens under the laws they had created, providing them an incentive to legislate in the common interest. During Parliament's absence, the King might meet certain emergencies through the exercise of prerogative power, but in order to make new, permanent laws, he would be required to call Parliament into session. Locke §§ 143-144, at 72-73. If the King were not dependent on Parliament to legislate, then this beneficial cycle of periodic lawmaking interspersed with representatives' living as private citizens would be broken.
[4] I do not mean to suggest here that the Framers believed an Act of the Legislature was sufficient to deprive a person of private rights; only that it was necessary. See generally Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1715, 1721-1726 (2012) (discussing historical evidence that the Framers believed the Due Process Clause limited Congress' power to provide by law for the deprivation of private rights without judicial process).
[5] The statute at issue in Field authorized the President to reimpose statutory duties on exports from a particular country if he found that the country had imposed "reciprocally unequal and unreasonable" duties on U.S. exports. 143 U.S., at 692, 12 S.Ct. 495. At least insofar as the terms "unequal" and "unreasonable" did not have settled common-law definitions that could be applied mechanically to the facts, they could be said to call for the President to exercise policy judgment about which duties qualified. See id., at 699, 12 S.Ct. 495 (Lamar, J., dissenting but concurring in judgment) (The statute "does not, as was provided in the statutes of 1809 and 1810, entrust the President with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes farther than that, and deputes to the President the power to suspend another section in the same act whenever `he may deem' the action of any foreign nation ... to be `reciprocally unequal and unreasonable ...'"). Similarly, the statute at issue in J.W. Hampton called on the President, with the aid of a commission, to determine the "`costs of production'" for various goods — a calculation that could entail an exercise of policy judgment about the appropriate wage and profit rates in the relevant industries. 276 U.S., at 401, 48 S.Ct. 348.
[6] The definition of "law" in England at the time of the ratification did not necessarily include rules — even rules of private conduct — dealing with external relations. For example, while "every Englishman [could] claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law," the King "by his royal prerogative, [could] issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence." 1 Commentaries 133. It is thus likely the Constitution grants the President a greater measure of discretion in the realm of foreign relations, and the conditional tariff Acts must be understood accordingly. See Clinton v. City of New York, 524 U.S. 417, 445, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (distinguishing Field on the ground that the statute at issue in Field regulated foreign trade); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 324, 57 S.Ct. 216, 81 L.Ed. 255 (1936) ("Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing 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"). This Court has at least once expressly relied on this rationale to sanction a delegation of power to make rules governing private conduct in the area of foreign trade. See Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 48 L.Ed. 525 (1904).
[7] Contemporary perceptions of the statute were less sanguine. One editorial deemed it "the most dangerous advance in bureaucratic government ever attempted in America." D. Schoenbrod, Power Without Responsibility 36 (1993) (quoting Letter from J. Cotton (Feb. 7, 1929), in With Our Readers, 13 Constitutional Review 98, 101 (1929)). President-elect Hoover stirred the public with promises of a repeal: "There is only one commission to which delegation of [the] authority [to set tariffs] can be made. That is the great commission of [the people's] own choosing, the Congress of the United States and the President." Public Papers of the Presidents, Herbert Hoover, 1929, p. 565 (1974); see also Schoenbrod, supra, at 36.
[8] Another early precedent on which the errant "subordinate rulemaking" line of cases relies involves rules governing mining claims on public land. Jackson v. Roby, 109 U.S. 440, 441, 3 S.Ct. 301, 27 L.Ed. 990 (1883); see also United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911) (sustaining an Act authorizing the Secretary of Agriculture to make rules and regulations governing the use and occupancy of public forest reservations). Although perhaps questionable on its own terms, Jackson is distinguishable because it did not involve the Government's reaching out to regulate private conduct, but instead involved the Government's setting rules by which individuals might enter onto public land to avail themselves of resources belonging to the Government.
[9] Much of the upheaval in our delegation jurisprudence occurred during the Progressive Era, a time marked by an increased faith in the technical expertise of agencies and a commensurate cynicism about principles of popular sovereignty. See Perez v. Mortgage Bankers Assn., ___ U.S. ___, 135 S.Ct. 1199, 1223, n. 6, ___ L.Ed.2d ___, 2015 WL 998535, *22, n. 6 (2015) (THOMAS, J., concurring in judgment).
[10] See Brief for Appellees in No. 12-5204(DC), pp. 23-29 (defending § 207 under cases upholding statutes "assign[ing] an important role to a private party"); id., at 29 ("Amtrak... is not a private entity comparable to the [private parties in a relevant precedent]. Although the government does not control Amtrak's day-to-day operations, the government exercises significant structural control").