Wrapping up judicial non-delegation

|The Volokh Conspiracy |

I've recently been blogging about my new article, The Inherent-Powers Corollary: Judicial Non-Delegation and Federal Common Law, which I've posted to SSRN. Here's a link to my last post, which contains the links to all the posts from the first one onwards. This is the conclusion to my paper:

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Realizing that the non-delegation doctrine applies to courts-just as it applies to the executive branch-is partly revolutionary and partly counter-revolutionary. At first, one is struck by the potential breadth of this insight and worried, or possibly excited, about the prospects for invalidating statutes left and right. At second, one realizes that many strategies that courts use to narrow statutes-from adopting limited interpretations, to using modest interpretive methods, to declining to find private rights of action, to implementing regulatory schemes with easily administrable standards-can already be seen as species of delegation avoidance, so courts are already implicitly kind of talking about non-delegation. At third, though, one discovers the Inherent-Powers Corollary.

The Inherent-Powers Corollary, it turns out, is vastly underrated-probably because we're used to thinking about the non-delegation doctrine as being primarily about the executive branch. The presidential powers that support a relaxed non-delegation analysis under the Inherent-Powers Corollary are important but narrow subjects, mostly having to do with military or international matters that are usually not foremost on the minds of administrative law or federal courts scholars. The Inherent-Powers Corollary cases like Curtiss-Wright (President gets to ban arms sales into the Chaco if he thinks it'll promote peace), Zemel (Secretary of State gets to ban travel to Cuba), and Loving (President gets to specify aggravating factors for military death penalty) can easily seem like relatively insignificant exceptions to the general "intelligible principle" rule-and even that general rule can easily seem dead.

But thinking about delegations to the judiciary should make us appreciate that the Inherent-Powers Corollary is actually central to understanding the non-delegation doctrine generally.

First, when we think about the judiciary as delegate, we realize just how extensive judicial power is. The power to make procedural rules is significant, though in a narrow field; and as for federal common law, even though the Erie doctrine (which is not primarily about non-delegation) conditions us to think it doesn't exist, it's miscellaneous and interstitial, but ubiquitous. Of course the scope of federal common law is controversial, so your mileage may vary. Indeed, when we argue about federal common law, we're indirectly arguing about non-delegation even if we don't realize it. Likewise, when we argue about permissible and impermissible methods of statutory interpretation, we're making arguments that are closely related, if not equivalent, to non-delegation arguments.

But even under narrow conceptions of federal common law, a great many delegations that one might have hoped or feared were unconstitutional turn out to pass non-delegation scrutiny after all. Though courts have tended to ignore non-delegation concerns in the context of judicial adjudication, maybe they've been reaching the right results anyway most of the time.

RFRA may or may not be a good exercise of the federal common-lawmaking power to craft statutory defenses, but it does state an intelligible enough legal rule because it incorporates a well-developed pre-Smith caselaw. The Alien Tort Statute may not state an intelligible enough legal rule beyond a few historical torts, but it does fall within a field of "uniquely federal interests" (international relations) that supports a federal common-lawmaking power. The Sherman Act is the mirror image of the ATS: it doesn't fall within a field involving uniquely federal interests-antitrust is just a type of private business tort-but it does state an intelligible enough legal rule because it incorporates a well-developed pre-1890 caselaw.

But not everything passes muster under the Inherent-Powers Corollary. The Rules of Decision Act can't authorize the Supreme Court to repeal procedural statutes that conflict with promulgated procedural rules. The residual clause of the Armed Career Criminal Act violates the non-delegation doctrine as well as the Due Process Clause-and while the non-delegation analysis seems narrower than the due process void-for-vagueness analysis (because it applies only to the federal government), it may even add some new elements (because a similar federal statute would be unconstitutional even if it didn't involve criminal penalties).

Second-and consequently-we should foreground the inherent-powers analysis: (1a) start by checking whether Congress is delegating into an area where the delegate already has power; (1b) if he doesn't, check for interlinking; (2) if there's no interlinking, only then do we proceed with the ordinary intelligible principle analysis. Even when talking about delegation to the executive branch, we should think explicitly in terms of the Inherent-Powers Corollary when discussing cases like The Brig Aurora (President gets to decide whether a country is neutral), Field v. Clark (President gets to decide whether other countries' tariffs are fair), Mahler v. Eby (exclusion of undesirable aliens), Buttfield v. Stranahan (tea inspection), and similar cases. And Curtiss-Wright-one of the few non-delegation cases that continues to be used in modern times!-should be taught as a principal case in the non-delegation section of administrative law courses.

Third, if, as I've argued, delegations to the judiciary should be judged more strictly than delegations to the executive branch, a lot more will ride on whether we stop at steps (1a)/(1b) above or continue to step (2). (If virtually any delegation satisfies step (2) anyway, who really cares?)

Stepping back and surveying the Inherent-Powers Corollary more generally, one avenue for further research is to formulate workable tests for delegations to the judiciary. If delegations to the judiciary should be judged more stringently than delegations to the executive branch, should the test be "intelligible principle with teeth," or something else entirely?

Another avenue would be to probe what exactly counts as a delegation into an area "interlinked with" a delegate's powers. Once we've established that the delegate couldn't have taken the required action on his own, how do we determine whether the granted power is interlinked with powers he already has? Is it just a question of related subject matter? Different views of interlinking will obviously translate into different views of what's saved by the Inherent-Powers Corollary and what will instead require the traditional intelligible principle.

A third avenue would be to revisit the whole idea of the Interlinking Curlicue-the idea, stated in Curtiss-Wright, that interlinked powers should qualify for the relaxed non-delegation treatment. As I've suggested above, if a statute directs a delegate to take an action, either the delegate could have already taken that action in the absence of the statute, or he couldn't have. If he could have, it makes sense not to require specificity from Congress; but if he couldn't have, why not require the usual degree of specificity? Why should it matter that the power granted is close to a power that the delegate already has? Questioning this could call into question the specific holdings of cases like Curtiss-Wright, Zemel, Mazurie (tribes get to ban importation of liquor into Indian country), Loving, and Mistretta (upholding the Sentencing Guidelines)-not that those cases would now go the other way, but we'd at least have to confront the question of whether the President, or tribes, or courts, could have done the delegated act as an exercise of their inherent power. This wouldn't touch the Inherent-Powers Corollary-the core idea that Congress doesn't need to be specific when delegating into an area where the delegate has power-but it would simplify it by eliminating one troublesome curlicue.

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