The Administrative State Before the Supreme Court, Perspectives on the Nondelegation Doctrine – Part 2

In Part 1 of my review of The Administrative State Before the Supreme Court, Perspectives on the Nondelegation Doctrine, I noted the widespread dissatisfaction among conservative scholars with the moribund status of the nondelegation doctrine – Congress, by inaction or indifference, has enabled Executive Branch agencies to usurp the Legislative Branch’s prerogative to enact our laws.  But the scholars in this book contend that reform of Congressional inertia is feasible.  In this review, I continue my summary of their recommendations for reform.  I also provide my thoughts on how Congress can reassert its lawmaking responsibilities.

Among the essayists who reflect on the demise of the nondelegation doctrine are Mark Chenoweth and Richard Samp of the New Civil Liberties Alliance. They question the assertion that our modern government will not function “if major policy decisions” were made by Congress, rather than by administrative agencies. They point out that Congress has established our federal tax policies through the Internal Revenue Code, with the Internal Revenue Service authorized to write rules that “fill up the details.” They characterize the “intelligible principle” doctrine as a “worn-out elastic band,” badly in need of a stronger replacement. To that end, they recommend a “series of viable replacements” that would give us “a more exacting standard” for applying the nondelegation doctrine.

They contend that courts should invalidate a regulation if the underlying statute fails to include “any binding standards that limit an agency’s rulemaking authority,” e.g., the statute simply lists goals to which the agency “should aspire.” In that context, they observe that the Supreme Court’s  decision upholding the Emergency Price Control Act of 1942 in Yakus v. United States (1944),1Yakus v. United States, 321 U.S. 414 (1944), reflected the fact that Congress could not realistically have set the price of every product sold in the United States, but instead set out some standards that limited the agency’s price-setting authority. This “absence of standards test” would invalidate laws that simply identify the factors that agencies are to take into account and there will be rulemaking proceedings. A more robust test would uphold a statute only if it provided sufficient standards for the judiciary to evaluate the lawfulness of the delegation.

Chenoweth and Samp do not believe that the nondelegation doctrine can be applied feasibly to rulemakings that implicate a “major” national policy, in part because there are no objective means to determine the contours of a major policy. Measuring such a regulation based on its financial cost would eliminate any rules that involved social issues, and, more importantly, the “Vesting Clause does not distinguish between major and minor policy decisions; it bans all delegations of legislative power.” They advocate a “functional” approach that would focus a court’s review on whether a delegation is of a “core” legislative function, such as taxation, the expenditure of federal funds and disposition of federal property, criminal statutes, or resolving public policy disputes. In the latter context, they suggest that Congress will establish “its preferred policy,” and then delegate “conditional fact-finding to an agency.” In any event, there needs to be “close judicial scrutiny” of any delegation.

In contrast, Professor John Harrison of the University of Virginia School of Law would retain the “intelligible principle” approach to judicial review of government spending programs. He reasons that when the government is spending its own resources, or acts as a property owner or as a contracting party, it is entitled to proceed with less judicial scrutiny – these are “unproblematic” uses of the Executive Branch’s central powers. As examples, he cites its operation of the Social Security benefit system and the postal system, and the government’s administration of the criminal justice system, which requires nonreviewable exercises of prosecutorial discretion.

But Harrison would extend the “intelligible principle” approach not only to the “government control of public resources,” but also to subjects of traditional “substantial regulation,” including the classic regulated industries, the national bank system, broadcast licensing, and environmental and occupational safety laws.  In these contexts, he reasons that the executive should be able to make “discretionary policy choices about public rights, when authorized by law.” Harrison appears to reject Justice Gorsuch’s concern that the separation-of-powers doctrine – and a corresponding limit on executive lawmaking – is implicated by agency interventions into those spheres of the economy.

Rounding out the essays are thoughtful contributions by Professors Gary Lawson and Joseph Postell.  Lawson believes that Chief Justice Marshall’s articulation of nondelegation reflected principles of Founding-era agency law. He also emphasizes that Article I itself is a delegation of authority from a principal, “We the People,” to an agent, the Congress, and that the latter, as a fiduciary, would have only limited authority to engage in a sub-delegation to another agent. Lawson finds Justice Gorsuch’s analysis in Gundy to be akin to this traditional understanding of agency law. Lawson does not set forth his own solution to the nondelegation problem, but he concludes that the Constitution’s “original meaning points us a vibrant body of founding-era agency law that at least helps us pose the right questions, even if it does not uniformly prescribe crisp answers to all those questions.”

Postell points out that some state courts have applied heightened scrutiny to state legislative delegations, but he has not detected either an “avalanche of litigation or widespread invalidation” of statutes or regulations that would “cripple” those states’ administrative capacities.” Such courts inquire if the statutes adequately defined the agency’s scope of authority by determining if the challenged law has carefully defined the persons subject the agency’s authority. Postell notes that some decisions rely on analysis similar to the intelligible principle” formulation, but focus on whether a challenged statute relies on standards or guidelines that will limit an agency’s discretion. Acknowledging that it is difficult to draw strong conclusions from limited case decisions, Postell nevertheless concludes that the nondelegation doctrine is not “moribund at the state level,” and some courts have crafted “more sophisticated and specific tests” than the Supreme Court.

Two writers grapple with how courts might apply a new, robust nondelegation doctrine. Judge Douglas Ginsburg endorses Justice Gorsuch’s initiative to spur a “principled and judicially manageable test” for evaluating Congressional delegations. Courts can distinguish between policy decisions and their implementation, he asserts, and, if courts reassume their oversight role, agencies “will predictably be more circumspect, more wary of judicial reversal.” Similarly, Congress will be more hesitant to enact delegations of “doubtful constitutionality.” In contrast, although regulated industries may try to challenge existing rules, statutes of limitation may preclude those attempts, so, as a practical matter, any litigation that invokes a “revived” nondelegation doctrine inexorably will be mounted against future regulations.  

Agencies, as a result, may decide that it will more prudent to approach Congress to recommend that it enact legislation under which an agency can regulate new matters that would be within its authority to address. Congress also could anticipate the issue by ratifying an agency’s (or even multiple agencies’) existing regulations against unlawful delegation challenges.

Finally, Professor Saikrishna Prakash assures that the “sky will not fall” if courts start to apply a revitalized nondelegation doctrine. Potential disruption to the political system can be mitigated if Congress decides to ratify preexisting rules or legislatively “issue” prior agency rules. And, if the courts do invalidate unlawful delegations, they can delay the issuance of their mandates so that Congress and the agency could take remedial action to address the issue. Or an agency can be proactive by choosing to delay the effective date of its final rules so that Congress may evaluate the agency’s authority to act unilaterally on what could be dubious delegation grounds. 


If Congress ultimately heeds the advice of these scholars, how might it proceed if it is serious about reasserting its lawmaking prerogatives? Here are some of my personal observations, derived from the essays and other readings.

First, and foremost, Congress needs to marshal its will and resources to craft more precise laws. Statutes that enable agencies to issue rules without specific criteria do nothing to improve the situation. But, since Congress can delineate complex tax laws, there is no reason that it cannot address other areas of regulation and express a law’s scope specifically. More clearly defining what is permissible or “off limits” for regulation of the affected private industry, with agency rules “filling in the details,” will cabin agencies’ discretion. Similarly, Congress should reassess existing laws that confer broad, undefined permissions to agencies to enact rules “pursuant to” their regulatory jurisdiction, e.g., agency “housekeeping” rules. Each enabling statute should strive for specific boundaries for agency action. Whether, as Justice Gorsuch advocates, Congress can establish a legal principle, with the agency applying it to set of facts it may ascertain, or adjudicate, may be a very challenging undertaking. Does Congress have the time (or sufficient expertise) to create such complex structures in its laws? 

From the standpoint of judicial review, I tend to agree with Jonathan Adler’s straightforward approach – the courts can require “clear evidence” that Congress has delegated the power to address a specific problem “in a specific way” to the agency at the time of enactment. This will mitigate the problem of agencies using authority granted at one point in time to address new problems that arise years later. It also will push Congress to be more precise in the scope of powers that it has granted.

I am much less certain that the nondelegation doctrine can operate flexibly if specific categories of Congressional action are excluded. Thus, although John Harrison would exclude government spending programs and laws involving the government’s own resources or status as a property owner or contracting party, that leaves much existing regulation undisturbed by the nondelegation doctrine. The government invariably places conditions on the receipt of federal funds or the grant of government contracts, grants, or other benefits. Why should such often-intrusive interactions with the private sector (and ordinary citizens) be left open to wide agency discretion? Professor Rappaport’s efforts to create two “tiers” of judicial review as to specific types of government action may be more palatable and also more manageable, but one can still quarrel with the distinctions among categories.    

A paramount question is how strict the courts will be in evaluating agency regulations that implement bright-line rules prescribed by Congress, or regulations that proceed from more elastic and less specific standards in the statute. As Editor John Yoo points out, the Supreme Court may proceed incrementally, to consider whether to adopt and apply a stricter, more “bright line” rules-based test in its review of federal statutes, or to proceed more cautiously, asking whether a statute provides sufficient standards for an agency to apply. Yoo notes that in a globalized economy undergoing rapid technological change, “today’s officials will have superior training and better information to strike the optimal balance between legislative and executive lawmaking for a 21st-century economy and society.” Like Yoo, I see more potential for agency latitude in these circumstances. And for those concerned about intrusive judicial review, the courts’ restraint may enable agencies to address unforeseen problems, with judges resisting the temptation to engage in policymaking themselves.

These scholars help point the way to a solution to the nondelegation conundrum – how Congress can reassert its lawmaking responsibilities while leaving the agencies the necessary leeway to address, inter alia, complex scientific and technical issues. There will be inevitable gridlock but a balance can be struck that presses Congress to act but understands that agencies may fill necessary vacuums when facing rapidly-changing environments. A more vigorous nondelegation doctrine, however articulated and applied, would be far preferable to a rote recital of the “intelligible principle,” which renders the nondelegation doctrine “toothless” (Chenoweth and Samp), or simply “mush” that is “judicially unmanageable and unenforceable” (Schoenbrod).


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    Yakus v. United States, 321 U.S. 414 (1944),
Theodore C. (“Ted”) Hirt is an Assistant Editor for Anchoring Truths. He is a semi-retired attorney and a member of the District of Columbia Bar. He is a Professorial Lecturer in Law at the George Washington University Law School, where he teaches Electronic Discovery & Evidence. He is a graduate of the University of Chicago Law School and Brown University. From August 1979 to March 2016, he was an attorney (Trial Attorney, Senior Trial Counsel, Assistant Director, Senior Litigation Counsel) in the Justice Department’s Civil Division. He litigated and supervised cases in its Federal Programs Branch and litigated cases in its Office of Immigration Litigation. His work included the defense of challenges to federal laws and to agency authority. His areas of expertise have included First Amendment issues, including the Religion Clauses, and internet-related issues. He has written numerous articles on constitutional and administrative law issues, the Federal Rules of Civil Procedure, pretrial practice, and electronic discovery. He is a Gettysburg, PA Licensed Town Historian/Guide.
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