I am grateful to Chad Squitieri, John Grove, and Peter Wallison for their excellent responses to my essay “Nondelegation without Chaos.” Their pieces sharpen the issues and help clarify what is at stake. But as engaging as they are, they do not undermine the core thesis of my essay—that delegation of unguided power to the executive undermines the separation of powers, even as retrospectively invalidating such delegations risks chaos. Nor do any of the responses take issue with my novel method of addressing this problem: prospective overruling. Prospective overruling can restore the separation of power structure without political upheaval.
Begin with Squitieri’s argument that delegation doctrine depends on the constitutional power delegated and is thus not captured by the more unitary perspective for domestic regulation that I suggest. I am not sure I agree with his key analytic move, which depends on a distinction between the plural legislative powers enumerated in Article I and the more general concept of legislative power. To be sure, the phrase “All legislative Powers herein granted” is a prelude to the enumeration of separate powers—but it also designates them all as species of legislative power. Thus, it does not follow that there is no unitary “legislative power” for separation-of-powers purposes. Enumeration may coexist with a single structural nondelegation principle for domestic regulation.
But, in any event, dividing the delegation doctrine into many subdoctrines would not significantly lower the stakes for overruling the current nondelegation doctrine. Almost all delegation of federal regulatory power comes from the Commerce Clause. The Supreme Court has interpreted that Clause to give Congress close to plenary authority in economic matters. Thus, if this doctrine must change substantially under original meaning analysis, we still face the same problems of chaos. Prospective overruling, not the division of delegation doctrine into fragments, remains necessary to the solution.
It is the great virtue of Grove’s response that he recognizes that expansion of the Commerce Clause beyond its original meaning lies behind the problem of excessive delegation as well.
He is also right that this expansion threatens both the horizontal and vertical separation of powers. The problem the Court faces in overruling the decisions that have led to excessive power in the federal legislature is much the same as that it faces in overruling the delegation doctrine that leads to excessive power in the executive. So many statutes have been enacted under this regime that retrospective overruling would engender chaos. Congress would not have the capacity to rewrite all statutes to make them constitutional, nor would states have the capacity to fill the gap immediately.
Thus, the solution to fixing the Court’s overbroad reading of the Commerce Clause also depends on prospective overruling. This approach allows past federal legislation passed under the Commerce Clause to remain in place. But in the future, Congress will be disciplined by the correct reading, allowing both federal and state legislatures to adapt to their proper roles under the Constitution. The restoration of federalism desired by Grove would thereby unfold incrementally, reflecting Burkean wisdom about the need for gradual change.
On the substance of the standard which I suggest, I believe, unlike Wallison, that it will make a difference. Wallison recognizes that the rule has been in place for almost a century and has proved remarkably toothless. Part of the reason is that the test’s very formulation invites passivity. Phrases like “protect the public interest” are “intelligible,” even if they grant almost boundless discretion. But I think it’s far less plausible that a Court could say, with a straight face, that by using this phrase, Congress makes the key policy choices, allowing the agencies only to fill in technical details and find facts.
Even if Congress today lacks the capacity to provide more detailed administrative legislation, it can undertake institutional reforms to be in a better position to do so.
Whatever its other virtues, Squitieri’s suggestion of building the nondelegation doctrine on the Necessary and Proper Clause is unlikely to be either an adequate or administrable replacement. First, modern doctrine treats this requirement as very lenient. Second, the “proper” prong would still require a freestanding account of what counts as impermissible lawmaking, and the Court has been reluctant to turn the Clause into a general‑purpose constraint, likely for justiciability reasons. Third, it also lacks support in early Supreme Court precedent of an approach that forbids delegating policy while allowing executive administration, such as interpretation and fact-finding. That approach states the line the courts must police rather than asking the Necessary and Proper Clause to supply one.
I also disagree with Squitieri that the test which Professor Michael Rappaport and I suggest is not administrable. Under our view, in the realm of domestic regulation, Congress may not delegate policymaking but may permit the executive to interpret and apply the law to facts. The distinction between policymaking and executive implementation is rooted in Madison’s insistence, as reflected in his own writings, that federal laws must provide “details, definitions, and rules.”
First, Courts should and do enforce the Constitution even when such enforcement requires nice judgments. The Supreme Court has long enforced the reasonable standard of the Fourth Amendment, even though the lines to be drawn are a matter of judgment. Likewise, while the First Amendment has a core meaning, jurists regularly debate questions such as whether a restriction is a reasonable time, place, and manner regulation. The Dormant Commerce Clause has often required delicate balancing.
The argument that any fuzzy edges preclude enforcement of the constitutionally required delegation doctrine is inconsistent with much constitutional jurisprudence. It usually reflects the view that such a separation-of-powers constraint should be left to the political, not the judicial, process. I disagree entirely with the view that structural provisions are second-class constitutional strictures. They are no less protective of our liberties than rights provisions and thus should be enforced even when they pose similar difficulties.
Second, the difficulties of a classical test for nondelegation are much exaggerated. The Constitution’s allocation of lawmaking power can be enforced by adhering to the formal distinction between making law and executing it. A formalist judge approaching a delegation case would begin by defining legislative power in concrete terms as the authority to establish generally applicable rules governing private conduct a statute grants the executive branch open-ended discretion to decide what rules or standards the public must obey (beyond merely applying a law’s provisions to facts), then the statute is effectively transferring Congress’s core legislative power and should be struck down. But if the statute only allows the executive to implement Congress’s determinate policy by filling in factual details or technical measures, it permits the executive only administrative, not legislative power. That is the approach Justice Neal Gorsuch suggests in his dissent in Gundy, echoing Chief Justice Marshall’s classic formulation that Congress may not delegate “powers which are strictly and exclusively legislative,” only the authority to fill in details or find facts.
Finally, prospective overruling will create a separation-of-powers dynamic that may spare the Court much of the heavy lifting. Congress will have incentives to legislate more comprehensively, for fear that failing to do so will render its legislation ineffective. Moreover, it can establish its own expert agencies in subject-matter areas to advise it, thereby gaining the knowledge needed for more precise drafting. Thus, I think even if Congress today lacks the capacity to provide more detailed administrative legislation, it can undertake institutional reforms to be in a better position to do so. In short, prospective overruling should make the judicial branch’s job easier by giving Congress fair warning.
The Roberts Court has made real progress in aligning the administrative state with the Constitution. But its prior moves on appointment, removal, and the major questions doctrine have been relatively easy, because they either do not touch the substance of regulation or still permit Congress to enact broad delegations so long as it speaks clearly. Overruling the permissive delegation doctrine prospectively would be a harder step. Still, it would do what these other doctrines cannot—restore the separation of powers at the point where law is made. By applying a stricter nondelegation principle only in the future, the Court can promote a regime more faithful to the Constitution while respecting the reliance that citizens and institutions have placed in the prior one.