After several generations of largely ignoring nondelegation doctrine, the Supreme Court has given indications that it may begin to enforce the doctrine again. This change in the constitutional interpretation could have enormous consequences, since a strong non-delegation doctrine controls the excesses of the administrative state considerably. However, enforcement of the nondelegation doctrine poses a problem that even those who agree with the doctrine are reluctant to apply – the view that there is no clear way of distinguishing between constitutional and unconstitutional delegations of political decision-making power to the executive. Here I would like to propose a solution to this problem (worked out in this article), which enables a judicially manageable non-delegation teaching.
The nondelegation doctrine states that Congress cannot delegate its legislative power to the executive branch. Legislative power is usually determined at political discretion. Therefore, the doctrine limits Congress to assigning political decisions to administrative authorities.
85 years ago, the Supreme Court used the doctrine to crush key delegations of legislative power in some cases during the New Deal. But the doctrine fell victim to the New Deal judicial revolution. With the appointment of New Deal judges, the Supreme Court began to apply the doctrine with the utmost leniency to allow the executive branch to have enormous delegations of political discretion. Since the New Deal, no delegations reviewed by the Court – and there have been many – have been found unconstitutional.
This loosening of teaching was important because it allowed the administrative state to grow. If strict nondelegation doctrine were enforced, Congress would have to pass laws instead of simply letting the authorities make rules, as is the norm today. This requirement would be substantial, since a divided government (which usually exists) means fewer and more moderate regulations would be passed if Congress had to pass them.
But the Supreme Court has now indicated that it may be ready to revive the doctrine of nondelegation. In the 2019 Gundy v. United States case, Justice Gorsuch wrote a dissent, along with two other judges (Roberts and Thomas), advocating a return to strict non-delegation doctrine. In a separate statement, Justice Alito stated that he was ready to reconsider the doctrine in an appropriate case, and in a subsequent statement, Justice Kavanaugh expressed similar feelings. That’s five judges, and with the addition of originalist Justice Amy Coney Barrett, there’s a real chance of establishing a strong doctrine of nondelegation.
However, there is a problem with a strict non-delegation doctrine: how do you distinguish between constitutional and unconstitutional delegations? This obstacle angered Justice Scalia and caused him to refuse to enforce a strong doctrine of non-delegation. In Mistretta versus USA Scalia wrote:
Once it is admitted how it must be that no law can be entirely precise and that some judgments, even some judgments that involve political considerations, must be left to the officials who implement the law and the judges who apply it Debate on unconstitutional The delegation becomes a debate not on a principle but on a question of degree (emphasis added).
As a result, Scalia felt that courts should not enforce nondelegation doctrine, despite recognizing that the prohibition on delegation was part of the constitution.
While Scalia was unwilling for the courts to enforce the doctrine, proponents of a strictly enforced non-delegation doctrine have also admitted that it would be difficult to draw the line between constitutional and unconstitutional delegations of political discretion. Gary Lawson (who worked for Scalia), using language from Chief Justice Marshall, argues that the constitution requires Congress to decide on “important issues” but can allow the executive branch to deal with “matters of lesser concern.” to solve. This rule, which Lawson admits, would have very ambiguous applications, is exactly what Scalia feared.
Modern laws often ask agencies to go beyond traditional legal interpretations and instead exercise political discretion.
But after years of grappling with the subject, I have found a more precise way of distinguishing between constitutional and unconstitutional delegations of political decision-making powers. In my view, the Constitution categorically prohibits the delegation of decision-making powers (in the area covered by the nondelegation doctrine that I discuss in my penultimate paragraph). In contrast, Congress can assign non-political tasks to the executive branch – most notably, real legal interpretation and real fact-finding. If an agency is merely interpreting laws or establishing facts, it is not exercising political decision-making powers and therefore its powers and actions are constitutional.
How do we determine whether an agency action is a legal interpretation? The answer is that in interpreting a law, the Agency must act as a traditional court would have done at the time the Constitution was ratified. It must try to see the meaning of the law from its text and purpose. As long as the agency behaves in this way, its actions constitute a legal interpretation rather than a political decision-making.
However, modern laws often ask agencies to go beyond such a traditional legal interpretation. For example, imagine if a law empowered an agency to legislate in the public interest. If the Agency then adopted a regulation on the grounds that it was one of many possible public interest provisions, it would go beyond legal interpretation as the Agency would help in deciding which public interest regulation to adopt has a political discretion. If the agency were instead to argue that the uniform regulation it has adopted is clearly determined by the standard of public interest, it would also be unconstitutional, as a court at the time of constitution did not use a general and vague term such as “the public interest” as a result would interpret a single specific regulation.
A similar approach differentiates policy making from fact finding. When an agency really does decide on a matter, the agency has no political decision-making power. Today, however, agencies are often given some discretion to decide issues that are similar to questions of fact, but which are actually decided for political reasons. For example, agencies are sometimes asked to determine the factual question of whether a substance is carcinogenic when there is no good evidence one way or another. Agencies often decide on these issues by taking a political position, e.g. B. “It is better to play it safe than to play it safe”. These types of decisions are not limited to statements of fact, but also include political statements and are therefore unconstitutional. However, if an agency only decides on a real question of fact – one on which there is an identifiable fact – the decision is constitutional.
In contrast to the non-delegation teaching envisaged by Scalia, my approach does not involve a question of degree. Instead, a task is classified as an investigation, interpretation, or policy making. There may be narrow cases – where it is not clear whether it is a real issue of fact or law – but that is true in most areas of law. Significantly, a distinction is made between political and factual and legal questions.
While my approach offers a relatively clear line between policy-making and executive power, the courts need to answer a different question. In my opinion, the strict non-delegation doctrine only applies to measures that involve the regulation of private rights, such as B. Common law rights. If the government regulates a private right, for example how to use one’s land or conduct one’s business, the strict doctrine of non-delegation applies to this regulation. These were the rights at formation that were most valued and seen as the most vulnerable. In contrast, a variety of laws, such as those relating to spending programs, foreign affairs, and territories, do not fall under strict nondelegation doctrine. There is significant historical evidence that delegations of this type took place near the founding time. While my approach requires courts to distinguish between laws that and do not fall under strict nondelegation doctrine, this task is no more difficult than many of the tasks that courts perform to rule on constitutional issues.
Ultimately, the original meaning of the constitution offers a judicially manageable boundary between constitutional and unconstitutional delegation of powers to the executive branch. While strong non-delegation doctrine brings other challenges, such as the potentially disruptive effect it would have on our existing laws, a judicially manageable standard is not one of them.