Judicial Non-Delegation, Part 3

The other day, I introduced my new article, The Inherent-Powers Corollary: Judicial Non-Delegation and Federal Common Law, which I've posted to SSRN. Next, I explained how the non-delegation doctrine (under current caselaw) applies to congressional delegations to the judiciary, and why it makes sense that it does.

In today's post, I explain the part of the doctrine that's referenced in my title: the "Inherent-Powers Corollary", which holds that the non-delegation doctrine is applied in a relaxed form (if at all) when the delegate already has an independent power in the subject matter. The Inherent-Powers Corollary also has an "Interlinking Curlicue", which holds that for the relaxed doctrine to apply, it's not necessary that the delegate actually have the delegated power already-just that the power delegated is interlinked with powers he already has. This means that applying the non-delegation doctrine to anyone-including the courts-might make a lot less difference than you'd like, depending on the extent of the delegates' existing powers.

As I explain below, the Inherent-Powers Corollary makes good sense; I'm not so sure about the Interlinking Curlicue.

I'd appreciate any comments on how to make it better-thanks in advance!

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If the non-delegation doctrine applies to delegations to the judiciary, surely-one might think-the doctrine must apply differently to take into account what everyone knows about the judiciary: that it engages in virtually unconstrained lawmaking all the time.

Indeed, the non-delegation doctrine should allow plenty of judicial lawmaking-and it does. But there's nothing special about this. Even with the more familiar executive delegations, the doctrine is more forgiving when the delegation concerns an area close to the delegate's (e.g., the President's) inherent powers. This is the Inherent-Powers Corollary to the non-delegation doctrine.

A Long and Distinguished History

The Supreme Court has been saying this for over 100 years. In Buttfield v. Stranahan, the Court upheld a delegation to an agency of the power to set standards for the exclusion of inferior imported tea; part of the Court's rationale was that allowing the delegation was necessary to allow Congress to "efficaciously exert[]" its "plenary power . . . to regulate foreign commerce."

Decades later, in Panama Refining Co. v. Ryan, the Supreme Court struck down a delegation to the President under the non-delegation doctrine. In doing so, it canvassed a number of broad historical delegations to the President and distinguished them as granting the President "an authority which was cognate to the conduct by him of the foreign relations of government." One such example was the President's power, during the period leading up to the War of 1812, to make embargo terms spring into force by declaring that Great Britain or France was violating the neutral commerce of the United States. (These delegations didn't all necessarily concern actions that the President could already have taken even in the absence of the statute-so maybe the statutes really gave the President power he didn't already have. Still, the authority they granted was "cognate" to the general foreign relations power that he already had.)

Shortly afterwards, in United States v. Curtiss-Wright Export Corp., the Supreme Court upheld an arms embargo ordered by the President in connection with the Chaco War, fought between Bolivia and Paraguay from 1932 to 1935. Congress had authorized the President to declare the embargo if he found that it "may contribute to the reestablishment of peace between" the warring countries, and to make any "limitations and exceptions" to the embargo. This was indeed a very broad and fairly unlimited delegation-particularly as to the extent of the exceptions. But, said the Court:

[W]e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress . . . .

In upholding the delegation, the Court explicitly assumed that it would have been invalid "if it were confined to internal affairs." (Possibly a fair assumption at the time: this was 1936, right after Panama Refining.) So Curtiss-Wright is an excellent case for establishing the proposition that delegations to the executive are given more leeway when they concern executive functions.

But if this was such a core presidential power, could the President have imposed the arms embargo on his own, in the absence of congressional action? The Court didn't decide: here, it said, the constitutionality of the delegation was supported by the combination of congressional and presidential power (note the conjunction "plus"), which-as Justice Jackson would famously put it some years later-is a circumstance where the President's "authority is at its maximum." But clearly, here the mere fact that Congress had authorized the President to act can't be enough to sustain the nearly standardless delegation: that didn't save the delegations to the President in A.L.A. Schechter Poultry Co. v. United States or Panama Refining. Rather, the "plus" was doing the work: it was the congressional authorization related to an area where the President already had some authority. Maybe he couldn't have done this on his own, but it was close enough that congressional authorization pushed it over the edge-which might not have worked for purely domestic subject matter. Compare "plus" with "cognate."

The Supreme Court relied on Curtiss-Wright and the Inherent-Powers Corollary in Zemel v. Rusk, where it held that the Secretary of State's ban on travel to Cuba was authorized by the Passport Act of 1926. The Act allows the Secretary to "grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States." The Court brushed off a non-delegation challenge by noting "the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature"-and explaining that in foreign affairs, Congress "must of necessity paint with a brush broader than that it customarily wields in domestic areas." (Compare to the Court's earlier statement in Kent v. Dulles, another passport denial case, that "[w]here activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them.")

The Supreme Court denied that the non-delegation doctrine was a totally dead letter in foreign relations, but explained that the executive branch's discretion was adequately limited by pre-enactment "administrative practice." Some other passport denial, immigrant exclusion, and international commerce cases are to the same effect.

The Inherent-Powers Corollary doesn't apply only to delegations to the executive branch. In United States v. Mazurie, the Supreme Court upheld a prosecution of the owners of a bar for illegally introducing liquor into Indian country. Congress had passed a local-option law under which Indian tribes could regulate the introduction of liquor into Indian country. The Mazuries argued that this was an invalid delegation to tribes; the Court replied that limitations on delegation are "less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter." Because Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory," Congress could validly delegate to the tribes a part of its authority to regulate Indian commerce.

As in Curtiss-Wright, the Court refused to decide whether the Indian tribes' authority extended so far as to allow it to impose a similar liquor regulation on their own; but certainly they could do so once authorized by Congress (again, even if the authorization would have been overly broad in another area).

The most recent Supreme Court case to apply the Inherent-Powers Corollary is Loving v. United States, in which the Supreme Court upheld a death sentence for murder imposed by a court-martial. The court-martial had imposed the death sentence because of three aggravating factors it had found-but the list of acceptable aggravating factors sufficient for imposing a death sentence, found in Rule for Courts-Martial 1004(c), was promulgated by the President through an executive order. The whole proceedings were governed by the Uniform Code of Military Justice, which was passed by Congress, but the UCMJ granted broad power to courts-martial and the President: courts-martial were authorized to, "under such limitations as the President may prescribe, adjudge any punishment not forbidden by [the UCMJ], including the penalty of death when specifically authorized by [the UCMJ]."

Is such a delegation of the power to limit the death penalty by specifying aggravating factors-without providing any guidance as to what sorts of limitations are acceptable-a violation of the non-delegation doctrine? The Inherent-Powers Corollary-as illustrated in Buttfield, Panama Refining, Curtiss-Wright, Zemel, and Mazurie-hint at the result: the rules are relaxed when "[t]he delegated duty . . . is interlinked with duties already assigned to the President by express terms of the Constitution"-in this case, the Commander-in-Chief power.

Again, the Court stopped short of saying that the power to specify aggravating factors was part of the President's non-statutory Article II power. If it were, then presumably the President could promulgate a list of factors without Congressional approval. True to form, the Court explicitly declined to decide that question: observe the vague word "interlinked" in the above quote. "Cognate," "plus," "interlinked." We've seen this idea-that the Independent-Powers Corollary applies not just when the delegate could have acted on his own, but also when "[t]he delegated duty . . . is interlinked" with his powers-come up over and over now. I call this the "Interlinking Curlicue."

These are the cases in which the Supreme Court has used the Inherent-Powers Corollary. And even more recently, in Clinton v. City of New York, the case striking down the Line Item Veto Act, the Supreme Court mentioned that the non-delegation doctrine is relaxed in certain cases, but denied that this was such a case. Other cases could be justified on similar grounds: Schoenbrod, for instance, argues that Field v. Clark-where the Court upheld a statute reimposing a suspended tariff regime on countries that, in the President's judgment, imposed "reciprocally unequal and unreasonable" tariffs on American goods-was right for the wrong reason, since it could be justified in terms of the "executive power in representing us against foreign powers."

Perhaps one could say the same of Mahler v. Eby and Carlson v. Landon, which related to the exclusion of undesirable aliens, as well as the Japanese-American military curfew case Hirabayashi v. United States. (Significantly, in regard to Hirabayashi, when it came to the case of Endo, a concededly loyal Japanese-American detained by a civilian agency, the Supreme Court held that the agency was without power to detain her. The fact that Endo was being detained by a civilian agency, not the military, was at least slightly important-which is again relevant to the Inherent-Powers Corollary.)

As for the wartime price-control cases Yakus v. United States and Bowles v. Willingham, possibly these could also fall within the doctrine-but on the other hand, Youngstown Sheet & Tube Co. v. Sawyer, the steel seizure case, suggests that domestic actions relevant to war needs get no special treatment. The same goes for United States v. Chemical Foundation, concerning the delegation to the President of the power to decide whether property expropriated from Germans after World War I-normally required to be sold to American citizens at a competitive auction-should be sold noncompetitively.

The Limits of the Inherent-Powers Corollary

Obviously, the Inherent-Powers Corollary applies only when the delegation is in (or near) areas where the delegate already has a preexisting power: Panama Refining and Schechter Poultry, for instance, were clearly outside those areas. Within those areas, does it have any limitation at all? Perhaps. In Hamdan v. Rumsfeld, Hamdan was going to be tried by a military commission for "conspiracy." One question in the case was whether conspiracy was a war crime; if it wasn't, the military commission lacked jurisdiction.

Congress could have made conspiracy a war crime by statute: the Constitution grants Congress the power to "define . . . Offenses against the Law of Nations." But Congress hadn't used that power. Instead, it passed Article 21 of the UCMJ. Article 21 "'incorporated by reference' the common law of war, which may render triable by military commission certain offenses not defined by statute."

The Constitution grants Congress the power to regulate interstate commerce, and Congress can delegate that power to agencies (subject to the "intelligible principle" test). If an agency uses its delegated power to regulate interstate commerce, the agency action satisfies the Commerce Clause if and only if identical congressional action would have satisfied the Commerce Clause: the agency action and congressional action are judged by the same standard.

So you'd think that Congress, having the power to define war crimes, could likewise delegate that power to the executive branch. Moreover, while generally congressional delegations to the executive require an intelligible principle, here the Inherent-Powers Corollary (plus the Interlinking Curlicue) would seem to make that unnecessary, since (given Curtiss-Wright and Loving) war powers are interlinked with the President's own powers.

Not so, said the plurality opinion. "When . . . neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous." If Congress could delegate its war-crimes-defining power to the executive in that blanket way, it would "risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by the statute or by the Constitution." Hamdan here cited Loving for the general proposition that Congress "may not delegate the power to make laws."

Why not rely on Curtiss-Wright (as Justice Thomas's dissent does)? Kontorovich interprets the plurality's view to stand for the proposition that Congress is more limited in its ability to delegate the definition of international law offenses to other branches than it is in its constitutional power to define these offenses. Perhaps. On the other hand, the plurality's view isn't a majority view, so maybe this is all speculation.

In any event, if Hamdan is relevant at all here, it's to show that the Inherent-Powers Corollary has its limits: a relaxed non-delegation doctrine doesn't mean Congress can get away with no limits at all. Hamdan isn't a constitutional case, but it illustrates how the Court can use a delegation-avoiding clear-statement rule even in an area interlinked with core executive powers, where Curtiss-Wright might make you think such avoidance is unnecessary.

The limit on the Inherent-Powers Corollary in Hamdan may be driven by other structural or constitutional principles. The executive branch can define crimes, but perhaps, as the plurality said, giving that power to the military has unique dangers. Moreover, perhaps here, for historical reasons related to the Offenses Clause, the specific grant of the war-crime-defining power to Congress should be considered exclusive in a way that the grant of the commerce power wouldn't be.

Looking ahead to the Alien Tort Statute's delegation to the judiciary of the power to recognize law-of-nations torts: The no-federal-common-law-crimes concern wouldn't prevent Congress from granting courts the power to recognize new and unusual international torts under the Alien Tort Statute-since federal courts do have the power to recognize common-law torts in federal areas like foreign affairs. But the history-of-the-Offenses-Clause concern could apply equally to torts as to crimes, since the Offenses Clause doesn't distinguish between civil and criminal offenses.

The Dubious Interlinking Curlicue

The basic Inherent-Powers Corollary makes good sense. If the President could already act in some field without congressional authorization-the organization of the military might be one example-then what's the harm in Congress's mandating that he do something within that field while giving him uncontrolled discretion in how to do it? If Congress established the military but provided no rules for its organization, presumably the President could organize it on his own. Congress may override this judgment, provided it retains the President at the top of the military organizational flowchart: its power to organize the military seems necessary and proper to its power to "raise and support armies" and "provide and maintain a navy." But if Congress can override the President's judgment, surely it needn't be any more specific than the President himself needs to be.

To say otherwise would be to deny Congress a measure of control over the President, even in an area where Congress and the President have concurrent power. Suppose the President had unilaterally (in the absence of congressional direction) adopted a rule that he would consider both merit and seniority (in some indeterminate way) in military promotion. Everything goes fine for a while; then, one day, the President changes his rule and decides that he won't consider seniority at all. Congress disagrees and wants the President to go back to also considering seniority. Surely Congress should be able to pass a statute directing the President to consider both merit and seniority, even if Congress doesn't say exactly how merit should be considered.

To insist that Congress be specific in overriding the President's judgment, while granting that the President needn't have been specific at all in the initial regime, is to make the President-to a certain extent-superior to Congress in his power to regulate the military. But that can't be the rule, except in the narrow category of cases where the President has an Article II power to act even contrary to congressional direction, Justice Jackson's narrow category 3.

But if the Inherent-Powers Corollary makes good intuitive sense, what's not obvious is the Interlinking Curlicue, under which Congress can delegate broadly-in a way that would otherwise violate the non-delegation doctrine-even in areas where the President couldn't act on his own but which are sufficiently "interlinked" with areas of presidential power.

The Supreme Court has upheld the delegation to the President of an "on-off" power to declare an arms embargo and ban travel to Cuba and control the military death penalty, and a delegation to tribes of a power to regulate liquor importation into Indian country-without deciding whether the President or tribes could do those actions on their own, which is equivalent to assuming that the President or tribes lacked that power.

If the delegate's power derives purely from an act of Congress-if it's close to an area where the delegate could act on his own, but isn't quite there-why shouldn't Congress have to legislate with the usual degree of specificity? It was on similar grounds that Justice Black denied, in Zemel v. Rusk, that the President should have any extra leeway in granting passports just because of the foreign-affairs subject matter.

Moreover, the Interlinking Curlicue introduces an extra element of uncertainty into non-delegation analysis. The simple Inherent-Powers Corollary has an elegant simplicity: if the delegation is into an area where the delegate has inherent power, then don't require any intelligible principle; otherwise, do require one. The Interlinking Curlicue means that, even if we're convinced that what Congress is asking for is outside of the delegate's inherent powers, we still have to deal with the vagueness of whether there was interlinking. If we had a robust caselaw on the subject, maybe we could answer the question; but the handful of cases that merely state the conclusion without any analysis isn't much help.

Perhaps the Interlinking Curlicue is just meant to endorse a sliding scale. The sliding scale could look like this: For delegations to do things that the delegate could do already, no intelligible principle is required. Otherwise, some principle is required, but the amount of intelligibility decreases the closer Congress gets to that area.

This has the flavor of another well-established non-delegation sliding scale-the direct relationship between how important the delegation is and how specific Congress has to be. But the importance/specificity sliding scale doesn't necessarily imply an inherentness/specificity sliding scale. The importance/specificity sliding scale is justified because the Necessary and Proper Clause requires that Congress make the fundamental decisions while allowing Congress to leave more minor ones to the discretion of delegates. But the fundamental/minor distinction seems unrelated to whether you're within the delegate's powers or just outside them. If anything, perhaps a justification for the inherentness/specificity sliding scale is that it relieves courts of some of the burden of having to decide the precise boundaries of the delegate's inherent power-though this is a dubious benefit.

In any event, right or wrong, both the Inherent-Powers Corollary to the non-delegation doctrine, and its Interlinking Curlicue, have been black-letter law for decades, not only for the executive but also for courts-which are the subject of the rest of this Article.