- See also: Taxonomy of arguments about the nondelegation doctrine, The Nondelegation Doctrine: A Timeline, List of scholarly work pertaining to the nondelegation doctrine, and List of court cases relevant to the nondelegation doctrine
Boston University School of Law professor Gary Lawson wrote in a 2001 law review article, "The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study."[1]
The nondelegation doctrine is a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. That means that lawmakers cannot allow others to make laws. This page contains the main ideas from major scholarly works that discuss the nondelegation doctrine.
Scholarly work in favor of nondelegation and against delegation[edit]
In "Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine," (2018) Antonin Scalia Law School assistant professor of law Jennifer Mascott argued:
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This short "reflections" essay is an invited piece that addresses the Supreme Court's consideration of the "nondelegation doctrine" this coming Term in Gundy v. United States. The Court has not found any statutory provision to be unconstitutional on nondelegation grounds since 1935. Will that change this Term when the Court evaluates the Attorney General's authority to retroactively apply federal sex offender registration requirements to individuals convicted prior to enactment of those statutory rules? Will the new makeup of the Court after Justice Kennedy's retirement impact the likely outcome of this nondelegation challenge?[2][3]
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In "As-Applied Nondelegation," (2018) attorney Ilan Wurman argued:
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The nondelegation doctrine is powerful—so powerful that the Supreme Court is afraid to use it. The doctrine holds that Congress cannot delegate its legislative power to agencies. If the Court were to enforce the doctrine, entire statutory provisions—and perhaps entire statutory schemes—would be at risk of invalidation.
Yet there is no need for such a powerful, facial doctrine. Nondelegation can be refashioned to be as-applied. An as-applied nondelegation doctrine would work by treating statutory ambiguities, just as Chevron does, as implicit delegations—each of which can be independently assessed for a nondelegation violation. This approach would explain the so-called “major questions” exception to Chevron, but without any of the existing doctrine’s flaws.
The implications of an as-applied nondelegation doctrine are numerous and highly attractive. It would replace the major questions doctrine, which the literature has rightly rejected, with a rigorous and coherent theory. It would better serve nondelegation interests by dramatically reducing any adverse consequences from finding a violation of the nondelegation doctrine. Finally, an as-applied nondelegation doctrine could be determinative in a handful of upcoming and important cases.[4][3]
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In "How to Salvage Article I: The Crumbling Foundation of Our Republic," (2017) New York Law School professor David Schoenbrod argued:
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Part I of my analysis argues that Article I’s purpose of making politically accountable officials personally responsible for consequences is vital to the success and endurance of the republic. Part II shows how elected officials began to evade such personal responsibility a half century ago. Part III explains how this evasion of personal responsibility has led to bumptious promises, failed policies, and spiraling distrust of government as well as polarization, gridlock, and the increased influence of special interests. The ensuing distrust set the stage for outsider candidates such as Bernie Sanders and Donald Trump. Whatever the fate of the Trump presidency, the distrust is likely to build so long as the tricks continue. Part IV proposes a statute, the Honest Deal Act, which would change the ground rules of legislative politics to force elected officials to once again shoulder personal responsibility for consequences. We cannot stop the tricks by broadening the powers of the President, constitutional adjudication, or constitutional amendments. Part V argues that it is possible, surprising as it might seem, to get elected officials to enact a statute that forces them to shoulder responsibility.[5][3]
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In "Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment," (2017) attorney A.J. Kritkos argued:
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An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it. First, the Court has stated that there is an insurmountable line-drawing problem that occurs when delineating a permissible delegation from an impermissible one. And second, the Court has asserted that the non-delegation doctrine cannot be seriously enforced in a complex, modern society without disastrous consequences. I argue that both of those problems are real but can be mitigated by a non-delegation test that emphasizes the primacy of the legislature in lawmaking, and there are two existing models of a better way that the Court can choose from. A compromise solution pioneered by the civil non-delegation jurisprudence of Florida shows that the doctrine can be flexible while still limiting vacuous delegations. Alternatively, Florida’s criminal non-delegation jurisprudence and opinions by two leading federal jurists promote strict formalism when the delegation at issue provides the executive with authority to define a crime. This latter approach allows for an experiment by federal courts that would limit to the criminal context renewed non-delegation enforcement[6][3]
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In "Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State," (2016) dean emeritus of the Boston University School of Law Ronald A. Cass argued:
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The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.
If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.[7][3]
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In "An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law," attorney Dina Mishra argued:
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Private entities often administer federal law. The early-twentieth century Supreme Court derived constitutional limits to delegations of administrative power to private entities, grounding them in Article I of the Constitution where legislative power is delegated and in the Due Process Clause where the delegee’s bias is apparent. But limits to the delegation of executive power to private administrators of law might exist in Article II. Those limits—in particular, their scope and the interplay among them—have been left underdeveloped by existing scholarship.
This Article explores the possibility of an Article II executive-power nondelegation doctrine for the private administration of federal law, and develops one potential framework for its analysis. Drawing force from the Vesting Clause, and informed primarily by the Take Care and Appointments Clauses, the doctrine might involve two inquiries: (1) Does the delegated task implicate “[t]he executive Power” that the Constitution vests in the President—a power, in the words of the Take Care Clause, to “take Care that the Laws be faithfully executed”? (2) If so, is the delegee a proper subordinate to the President, so that his performance of such executive tasks does not divest the President of “[t]he executive Power”? As the Article explains, a rigid unitary executive approach—which demands complete presidential control over every task connected with the execution of law—is not the only coherent way to understand Article II’s Vesting Clause to restrict delegations of executive power. Under the Supreme Court’s Article II precedent, the doctrine’s inquiries might depend instead on the nature of the task and the form, degree, and directness of presidential oversight or control available over the task or over the one performing it, flexibly allowing for certain trade-offs among those control mechanisms, so long as the President
remains accountable for the execution of law. By conceptualizing Article II as imposing a non-delegation analysis, this Article observes how the Vesting Clause might constrain certain delegations of power over law’s execution that are made by the President and executive branch, not simply those made by Congress. [8][3]
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In "The "Benefits" of Non-Delegation: Using the Non-Delegation Doctrine to Bring More Rigor to Benefit Benefit-Cost Analysis," (2007) University of Houston Law Center professor Victor B. Flatt argued:
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There is some hope for benefit-cost analysis as a tool if it is used in a precise way. The criticism of benefit-cost analysis being manipulated and inadequate for certain kinds of analyses is correct. What is striking is that agencies should not be engaged in this kind of manipulation of policy making in the first place. It is a violation of the separation of powers doctrine in our Constitution, and this determination could be made by a rigorous application of the non-delegation doctrine to such agency action. All it requires is for our courts to recognize the proper standard that governs what an agency can and should be engaged in when applying benefit-cost analysis and then a willingness to examine so-called "objective" evidence for accuracy. Doing this might go a good way in curbing abuses of benefit-cost analysis and improving its use in practice.[9][3]
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In "Politics and the Principle that Elected Legislators Should Make the Law," (2003) New York Law School professor David Schoenbrod argued:
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The Supreme Court's decision in Whitman v. American Trucking Association has been widely understood as repudiating decisively the principle that elected legislators should make the law or as refusing to enforce this principle on the basis that the Court lacks a judicially manageable standard. This article argues that at least some Justices believe that the Constitution does embrace that principle and further believe that it is judicially manageable, but shy away from enforcing it because it is politically impossible for it to stop Congress from delegating politically controversial choices to administrative agencies. The Court has, however, found it possible to prevent the practice of delegation from spreading to include delegations to governmental institutions other than agencies and has done so. Seeing the delegation case law as driven by political constraints provides a way to understand seeming disparate areas of case law and also shows that the Court does have a useful, although not all-powerful role in enforcing the constitutional principle that elected legislators should make the law. Moreover, the Court has begun, however subtly, to play that role in ways that could eventually have repercussions for delegations to agencies.[10][3]
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In "Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated," (2003) law professors Larry Alexander and Saikrishna B. Prakash argued:
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Although we have sympathy for the conventional nondelegation doctrine, space considerations prevent us from mounting an adequate defense of it here. Hence, all we claim is that if one concludes that the delegation of legislative power is impermissible (for whatever reason), one must have in mind a prohibition akin to the conventional nondelegation doctrine. If, as Posner and Vermeule claim and as many others believe, the Constitution prohibits the delegation of legislative power, the nondelegation doctrine is alive and kicking.[11][3]
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In "Delegation and Original Meaning," (2002) Boston University School of Law professor Gary Lawson argued:
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The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.[12][3]
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In "Delegation and Democracy: A Reply to My Critics Symposium - The Phoenix Rises again: The Nondelegation Doctrine from Constitutional and Policy Perspectives: Democracy and Delegation," (1998) New York Law School professor David Schoenbrod argued:
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Although the Constitution established congressional responsibility as the main engine of our indirect democracy, members of Congress have evaded responsibility by delegating legislative powers to the executive branch. The result, as I have argued, is that democracy suffers.
My argument has prompted criticism by participants in this symposium. For example, Professor Jerry Mashaw, who had been scheduled to speak, but did not, contends that delegation does no harm to democracy; Professor Dan Kahan contends that democracy is a meaningless concept; and Professor Peter Schuck argues that delegation is a policy choice that Congress is entitled to make. This Article responds to each of them after placing the question of delegation's impact on democracy in historical context.[13][3]
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In "Goal Statutes or Rules Statutes: The Case of the Clean Air Act," (1983) New York Law School professor David Schoenbrod argued:
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A rules approach to a problem so complex as air pollution would not be simple, but it would be much simpler than a goals approach. Controls under rules statutes would have to be of more general applicability than under a goals statute, if for no other reason than to conserve the legislature's time. Moreover, each application of a rule not only settles that case but also offers guidance to the settlement of other cases, thereby avoiding the need for formal consideration of many particular situations. A goals statute, by contrast, requires the consideration of many sources when the controls are promulgated to achieve the legislated goals. That complex decision is only the beginning. Time will necessarily bring conflict between the promulgated controls and the legislated goals requiring adjustment of the controls in some or all cases. Congress could decide that controls promulgated may not be changed for a specified period of time, but such a scheme, although perhaps desirable, adds yet another layer of complication.
Goals statutes can offer seemingly comprehensive solutions, but they often avoid the most pressing aspects of the problem and fail to resolve the problem at large. Rules statutes do not preclude additional legislation and, indeed, make it likely that future legislation can be more mature.
Goals statutes' procedures are the least studied aspects of the legislation prior to enactment and thus tend to be the repository of false resolutions. Unworkable procedures force others to do what the legislature failed to face, and the delegates are without Congress' means to reach resolution.
Finally, goals statutes create relatively unaccountable power-in legislators who might fight to enact the most seemingly
pleasing goals, in executive branch officials who might use their discretion to allocate regulatory burdens as a tool in partisan struggles, or in private litigants who might use their substantial power over which public duties are fulfilled to advance private agendas.[14][3]
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Scholarly work opposing the nondelegation doctrine and in favor of delegation[edit]
"The Nondelegation Doctrine: Alive and Well" (2017) is an article by American legal scholars Jason Iuliano and Keith E. Whittington arguing that history does not support the scholarly consensus that the New Deal nullified the nondelegation doctrine. They analyze over 1,000 state and federal nondelegation cases between 1940 and 2015 and conclude that court approaches to nondelegation do not change much after the supposed judicial revolution of 1937.[15]
"The Myth of the Nondelegation Doctrine" (2017) is an article by Keith E. Whittington and Jason Iuliano arguing that federal and state courts have never consistently applied the nondelegation doctrine to restrain or overturn vast delegations of power and authority. Using an original dataset of pre-1940 federal and state court cases, the authors challenge what they see as the standard narrative of the history of the nondelegation doctrine, particularly the idea that "the classical Constitution of the nineteenth century included a nondelegation doctrine with real teeth, which was subsequently defanged as part of the struggle over the New Deal."[16]
"Rulemaking as Legislating" (2015) is an article by American lawyer and professor Kathryn Watts arguing that the U.S. Supreme Court should explicitly recognize that Congress "routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do." Watts' article argues that there are unresolved contradictions in the Supreme Court's jurisprudence on the nondelegation doctrine, which forbids Congress from delegating its legislative power to agencies. She concludes that the best resolution to this issue would be for the court to reject the premises of the nondelegation doctrine as it has previously understood them and revise other administrative law doctrines (such as Chevron and Auer deference) to fit what she perceives as the reality of routine delegations of legislative authority by Congress to agencies.[17]
In "Deconstructing Nondelegation," (2010) Cornell Law School professor Cynthia R. Farina argued:
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This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine – at least as traditionally stated – does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than continue to use nondelegation as a stalking horse.[18][3]
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"Interring the Nondelegation Doctrine" (2002) is an article by American lawyers and professors Eric A. Posner and Adrian Vermeule arguing that the nondelegation doctrine is a legal fiction and that congressional delegations of authority are never delegations of legislative power.[19]
In "The Nondelegation Doctrine as a Canon of Avoidance," (2000) Harvard Law School professor John F. Manning argued:
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This article examines the Court’s practice of enforcing the nondelegation doctrine through the canon of constitutional avoidance rather than through Marbury-style judicial review. Traditionally, the Court has said that Congress may not delegate its Article I authority to administrative agencies. Nonetheless, under the prevailing “intelligible principle” test, the Court has almost never invalidated an Act of Congress on the ground that it delegates excessive discretion to an agency. Instead, the Court developed a practice of construing statutes to avoid what the Court regards as a grant of discretion broad enough to raise a serious nondelegation concern. [...]
This article argues that even if the Court embraces the canon of constitutional avoidance in other contexts, that approach seems a particularly inapt way to enforce the nondelegation doctrine. The entire point of the nondelegation doctrine is to ensure that Congress is responsible for basic statutory policy decisions. If, in the name of enforcing that doctrine, the Court effectively rewrites the statute, then it is not ensuring that Congress is responsible for the policy articulated in the (rewritten) statute. Indeed, building on work by Jerry Mashaw, this article suggests that using the canon of avoidance rather than judicial review to enforce the nondelegation doctrine may, if anything, be more corrosive of congressional prerogatives. If the Court invalidates a statute in the exercise of judicial review, then Congress must go back to the drawing board and bargain over how to enact its policy validly. If, however, the Court rewrites a statute, then the Court’s preferred policy point may become entrenched if it is closer to the preferences of the House, the Senate, or the President than to any alternative on which all three could agree.[20][3]
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In "Nondelegation Canons," (1999) Harvard Law School professor Cass R. Sunstein argued:
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In this Essay I have two purposes, descriptive and normative. The descriptive purpose is to show how certain canons of construction operate as nondelegation principles. My aim is to unify a set of seemingly disparate cases and to suggest that they actually construct a coherent and flourishing doctrine, amounting to the contemporary nondelegation doctrine.
The second and normative purpose is to show that such canons, though highly controversial, should be understood as entirely legitimate. The nondelegation canons have crucial advantages over the more familiar nondelegation doctrine insofar as they are easily administrable, pose a less severe strain on judicial capacities, and risk far less in the way of substantive harm. The nondelegation canons represent a salutary kind of democracy-forcing minimalism, designed
to ensure that certain choices are made by institutions with a superior democratic pedigree. Indeed, the nondelegation canons turn out to be a contemporary manifestation of the founding effort to link protection of individual rights, and other important interests, with appropriate institutional design. In certain cases, Congress must decide the key questions on its own. This is the enduring function of the nondelegation doctrine, and it is endorsed, not repudiated, by current law.[21][3]
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See also[edit]
- ↑ Gary Lawson, "Delegation and Original Meaning", Virginia Law Review, Vol. 88, No. 2 (Apr., 2002), pp. 327-404
- ↑ SSRN, "Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine, Abstract," accessed January 25, 2019
- ↑ 3.00 3.01 3.02 3.03 3.04 3.05 3.06 3.07 3.08 3.09 3.10 3.11 3.12 3.13 3.14 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Ilan Wurman, "As-Applied Nondelegation," Texas Law Review Vol. 96, Issue 5 (Apr. 2018), accessed January 25, 2019
- ↑ David Schoenbrod, "How to Salvage Article I: The Crumbling Foundation of Our Republic," Harvard Journal of Law and Public Policy Vol. 40 (2017), accessed January 25, 2019
- ↑ A.J. Kritkos, "Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment," Missouri Law Review, Vol. 82, Issue 2 (Spring 2017), accessed January 25, 2019
- ↑ SSRN, "Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, Abstract," accessed January 25, 2019
- ↑ Dina Mishra, "An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law," Vanderbilt Law Review Vol.68, No. 6 (November 2015), accessed January 25, 2019
- ↑ Victor B. Flatt, "The "Benefits" of Non-Delegation: Using the Non-Delegation Doctrine to Bring More Rigor to Benefit Benefit-Cost Analysis," William & Mary Bill of Rights Journal, Vol. 15, Issue 4 (2007), accessed January 25, 2019
- ↑ SSRN, "Politics and the Principle that Elected Legislators Should Make the Law, Abstract," accessed January 25, 2019
- ↑ SSRN, "Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated, Abstract," accessed January 25, 2019
- ↑ SSRN, "Delegation and Original Meaning, Abstract," accessed January 25, 2019
- ↑ David Schoenbrod, "Delegation and Democracy: A Reply to My Critics Symposium - The Phoenix Rises again: The Nondelegation Doctrine from Constitutional and Policy Perspectives: Democracy and Delegation," Cardozo Law Review, Vol. 20 (1998), accessed January 25, 2019
- ↑ David Schoenbrod, "Goal Statutes or Rules Statutes: The Case of the Clean Air Act," UCLA Law Review, Vol. 30 (1983), accessed January 25, 2019
- ↑ Notre Dame Law Review, "The Nondelegation Doctrine: Alive and Well" 2017
- ↑ University of Pennsylvania Law Review, "The Myth of the Nondelegation Doctrine," 2017
- ↑ Georgetown Law Journal, "Rulemaking as Legislating," 2015
- ↑ SSRN, "Deconstructing Nondelegation, Abstract," accessed January 25, 2019
- ↑ University of Chicago Law Review, "Interring the Nondelegation Doctrine," Autumn 2002
- ↑ SSRN, "The Nondelegation Doctrine as a Canon of Avoidance, Abstract," accessed January 25, 2019
- ↑ Cass R. Sunstein, "Nondelegation Canons," John M. Olin Program in Law and Economics Working Paper No. 82 (1999), accessed January 25, 2019
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