What comes next for the nondelegation doctrine? In “Nondelegation Without Chaos,” Professor John O. McGinnis offers some characteristically insightful thoughts. In particular, he outlines obstacles standing in the way of a reinvigorated nondelegation doctrine, and offers a proposed means of overcoming them. While I agree with much of his analysis, he overlooks one of the most important obstacles to reinvigorating the nondelegation principle, and I wish to offer an alternative means of reinvigorating the nondelegation principle. I am therefore pleased to accept the editors’ invitation to offer this response.
Background
The Constitution’s nondelegation principle limits Congress’s ability to delegate congressional powers to other entities. The principle is a crucial and inherent feature of our Constitution, which vests only specific powers in specific federal branches. Article I of the Constitution vests “all legislative powers herein granted” in Congress, Article II vests “the executive power” in the president, and Article III vests “the judicial power of the United States” in the federal judiciary. By limiting Congress’s ability to delegate its legislative powers to other entities, the nondelegation principle helps courts maintain the constitutional separation of powers.
Unfortunately, the federal judiciary has not done a great job at enforcing the nondelegation principle. As McGinnis explains, “the Supreme Court’s only current limitation on delegation is that Congress must have articulated an ‘intelligible principle,’” and the Court “has applied this test so leniently that it has never struck down a delegation since the New Deal.” In short, history has proved the “intelligible principle” test to be a failure.
Why, then, has the Supreme Court not replaced the failed “intelligible principle” test with a test better able to enforce the nondelegation principle? McGinnis offers two explanations—which he describes as two “obstacles” to reinvigorating the nondelegation principle. First, he notes that replacing the lax “intelligible principle” test with a strengthened test would “endanger a large number of administrative delegations in environmental, consumer protection, and other areas of regulatory law.” He therefore thinks that “revising the delegation doctrine would implicate vast reliance interests and generations of precedent.”
The second “obstacle” flagged by McGinnis is the major questions doctrine. That doctrine requires administrative agencies to identify clear congressional authorization to regulate matters of “major” economic and political significance. And McGinnis suggests that the major questions doctrine reduces judicial interest in the nondelegation principle, given that the major questions doctrine can serve as a partial substitute for a reinvigorated nondelegation principle. As he puts it, the major questions doctrine “operates as a shadow substitute for a full-blown revival” of the nondelegation principle, and thus “achieves many” of nondelegation’s “objectives without inviting the chaos that would follow from striking down swaths of the US Code or destabilizing entrenched regulatory regimes.”
After outlining those two obstacles, McGinnis turns to proposing how the nondelegation principle could nonetheless be reinvigorated. Specifically, he proposes that the Supreme Court adopt a form of “prospective overruling,” a concept that he has defended elsewhere with Professor Michael Rappaport. Prospective overruling would allow the Court to “announce” a new “governing standard” for delegation cases, but then apply that new standard only “in subsequent cases.” The new governing standard proposed by McGinnis is rather straightforward: “Congress must make the policy choices,” while “administrators may implement the law and find facts.” And the upshot of prospectively adopting that standard is that “future delegations would … have to conform to” the new standard, while “existing statutes … would remain enforceable” because they fall within “a safe harbor for preexisting delegations and the regulations issued under them.”
As McGinnis sees it, “the virtue” of his prospective overruling proposal is “that it would apply the [Constitution’s] original meaning to a single, recent enactment rather than to numerous statutes enacted over a lengthy period, thereby minimizing reliance costs while reestablishing the proper separation of powers.” By comparison, he worries that “if a stricter delegation rule were applied to the past, Congress would face enormous pressure to replace, in short order, a sprawling body of law.”
Three Points of Disagreement
McGinnis and I agree on a good deal. But I will focus here on three points of (rare) disagreement. The first relates to his identification of the relevant obstacles. The second and third relate to his proposed solution.
First, I think McGinnis overlooks an important impediment to reinvigorating the nondelegation doctrine—namely, the difficulty in creating a judicially manageable standard. It is one thing to say that the nondelegation principle constitutes a crucial component of our governmental order. It is another thing to say that federal courts are equipped to enforce the nondelegation principle in real cases.
Consider the views of Justice Scalia, who explained that although “the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts.” Justice Scalia’s demand for a judicially manageable test is a demand that has been difficult to satisfy. I therefore think McGinnis overlooks a significant obstacle when he fails to address the difficulty in developing a judicially manageable standard.
The current nondelegation doctrine should be transformed into multiple nondelegation doctrines, with each doctrine corresponding to one of the many different legislative powers vested in Congress.
Second, and relatedly, I do not think McGinnis’s proposed standard adequately addresses Justice Scalia’s concern. McGinnis’s proposed standard, which would require Congress to “make the policy choices” while allowing administrators outside of Congress to “implement the law and find facts,” sounds eminently reasonable in the abstract. But the standard does not offer much in terms of practical guidance. To say that courts must distinguish between law, fact, and policy is to largely restate the problem that the nondelegation doctrine is supposed to address. Jurists like Justice Scalia would seem to need more.
Third, McGinnis’s “prospective overruling” proposal would leave unaddressed a mountain of unconstitutional actions. By creating “a safe harbor for preexisting delegations and the regulations issued under them,” his proposal would be of little help to Americans who are today subjected to existing federal policy that is promulgated and enforced in ways that do not comport with the Constitution’s original design. McGinnis suggests that courts should leave those existing delegations and regulations in place—presumably as the price for making a reinvigorated nondelegation doctrine more palatable. But I am not sure federal jurists can strike that type of bargain. As Justice Gorsuch has rightfully noted in the nondelegation context, “when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed.”
An Alternative Solution
Having outlined three points of disagreement, I will conclude by offering an alternative solution that might be of interest to McGinnis and other originalists. To state my proposal in brief terms: the current nondelegation doctrine should be transformed into multiple nondelegation doctrines, with each doctrine corresponding to one of the many different legislative powers vested in Congress.
My proposal offers a judicially manageable standard because it would require courts to hue more closely to an originalist understanding of the Constitution’s text. As Professor Robert Natelson has observed, “the Constitution does not delegate to Congress ‘the legislative power.’” Instead, and as was quoted above, Article I vests Congress with “all legislative powers” (plural) “herein granted.” The Constitution then specifically enumerates various “legislative powers” granted to Congress. Crucially, the Constitution uses different words to grant different legislative powers. And because those different words have different original meanings, originalist jurists should be open to the possibility that those different meanings might allow Congress to delegate different powers in different ways.
For example, the historical context surrounding domestic taxation might indicate that Congress could rely heavily on executive officials (e.g., tax collectors) to exercise Congress’s Article I power to “collect taxes,” but rely less heavily on executive officials to make policy decisions concerning how much domestic tax revenue should be raised in the first place. More specifically, and as I have argued elsewhere, the relevant nondelegation tests should run through the text of the Necessary and Proper Clause—at least for those legislative powers vested by the original Constitution. Thus, the text-based nondelegation tests for the legislative powers granted to Congress in the original Constitution would track the language of the Necessary and Proper Clause by asking whether a particular statute constitutes a “necessary and proper” means of carrying a particular legislative power “into execution.”
Rather than ask courts to engage in philosophical debates about “intelligible principles,” or debate where “the legislative power” ends and the executive or judicial powers begin in the abstract, my proposed approach would require courts to instead focus on the original scope and meaning of specific powers. This would not eliminate the need for courts to address tough questions; it might sometimes be difficult to know for certain whether a particular type of delegation would have been considered at the Founding to have been a “necessary and proper” means of carrying a specific legislative power “into execution.” But by narrowing the questions to focus on the historical context of specific words in the Constitution, rather than abstract questions of political philosophy, the judicial task should be much easier for courts to handle.
My approach is similar to Rappaport’s “Two-Tiered” approach, which was flagged by McGinnis. But rather than two tiers—where, as McGinnis explains, a strict version of nondelegation applies to “domestic regulation of private rights” and a lax version applies “in appropriations, foreign and military affairs, and territorial governance”—my approach would start with many more tiers than two. As courts develop and crystallize power-specific nondelegation doctrines over time, it might be the case that those doctrines come to fall within identifiable tiers. But for now, at the start of a rather long-term project, it is best to approach the task on a power-by-power basis and see where the chips fall over time.
Adopting a text-based, power-by-power approach to nondelegation would also account for some of the “reliance” concerns flagged by McGinnis. But it would not account for those concerns by requiring courts to turn a blind eye to unconstitutional delegations that happen to already exist. Instead, “chaos” could be avoided under my proposal because a judicial ruling concerning a particular delegation of one legislative power need not upset other delegations of other powers. The Supreme Court could therefore exercise discretion by first enforcing an originalist understanding of nondelegation in a case concerning a relatively mundane power or government program. In doing so, the Court could explain that its ruling should not be overread as applying to different delegations of different legislative powers. But the Court could simultaneously put Congress on notice of the fact that the Court is prepared to more seriously enforce an originalist understanding of the nondelegation principle more generally.
Having been placed on notice, a responsible Congress could begin to address and amend important statutes before challenges to those statutes reach the Supreme Court. This approach would not give a free pass to unconstitutional delegations that happen to already exist. But it would give Congress time to tighten up broad delegations that are subject to being ruled unconstitutional under heightened nondelegation review.
In sum, I agree with McGinnis on much, including his observation that “the Roberts Court has made less progress for its basic vision on delegation than in other separation-of-powers domains.” The Court has made tremendous progress when it comes to the separation of powers in general, with nondelegation being a notable exception that proves the rule. But I disagree with McGinnis as to the best way to assist the Court in bringing its nondelegation precedent into alignment with the Court’s broader commitment to an originalist understanding of the Constitution’s structure. To properly enforce the Constitution’s nondelegation principle, the Court should begin the long-term project of developing multiple text-based nondelegation doctrines—one doctrine for each of Congress’s powers.