The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Not too long ago, Jason Iuliano and I published an article examining a large collection of cases deploying the nondelegation doctrine in state and federal courts prior to the New Deal. These decades should have been the golden age of judicial enforcement of the principle that the representative assembly that has been vested with the legislative power in the constitution cannot delegate that lawmaking power to some other body to exercise. Although courts frequently heard constitutional challenges to statutes on the basis of that argument and routinely emphasized that a nondelegation principle was implicit in the American constitutional design, they very rarely found that the legislature had crossed the constitutional line in practice.
As legislatures built the administrative state, the courts overwhelmingly gave it their blessing over the course of the nineteenth and early twentieth centuries. The courts found it hard to identify a manageable rule to determine when the legislature had gone too far in delegating authority to others and regularly emphasized that the constitutional separation of powers should not be construed to render the machinery of modern government unworkable. The nondelegation doctrine was a paper tiger even in its heyday.
Fun fact: Many of those nondelegation cases came in the context of public health statutes. As states struggled to deal with public health emergencies, legislatures regularly handed off open-ended power to executive officers to identify public health problems and develop whatever policies might be appropriate to addressing them. As the medical profession tried to consolidate its hold over the diagnosis and treatment of disease, state legislatures were inclined to hand over broad discretionary power to boards of health, health commissioners, and licensing boards to exercise their expert power to make the republic a healthier place.
In Blue v. Beach, a 1900 Indiana case, the state supreme court was asked to consider whether a local public school could exclude a child who refused to be vaccinated for smallpox. State law had not empowered school officials to exclude unvaccinated children, and indeed attending a free public school was a constitutional right in Indiana. Moreover, the state legislature had not empowered public health officials to make vaccination a condition for admittance into public schools. What the state legislature had done was create a board of health armed with the power to make rules to prevent the spread of infectious diseases, and that was enough. It was true, the court admitted, that the legislature "cannot confer on any body or person the power to determine what the law shall be." But the power granted to administrative boards to adopt regulations "reasonably adapted to carry out the purpose or object for which they are created" could not be regarded as an "improper delegation of authority."
In Ex Parte McGee, the Kansas state supreme court considered measures taken to combat the outbreak of venereal disease among federal troops stationed in military bases in the state during World War I. The Kansas legislature similarly empowered a state board of health to make rules "as may be necessary to prevent the spread and dissemination of diseases dangerous to public health." The state board subsequently designated syphilis to be a dangerous disease and directed local officials to investigate "all suspected cases," examine "all persons reasonably suspected of having syphilis," and to "isolate such persons" as necessary. When the health commissioners of Topeka ordered that every suspected prostitute in the city be examined and, if appropriate, sent to an industrial farm for quarantine, the state supreme court thought that order within the scope of their powers. While "the terms of the statute are somewhat meager," the court nonetheless thought it "indispensable to the preservation of public health that some administrative officer or board should be clothed with authority to make adequate rules which have the force of law."
The Kansas court noted a "constantly lengthening list" of cases being decided across the country upholding just such broad delegations of power to public health officials to determine what diseases should be regarded as dangerous and what measures might be necessary to prevent their spread. Those cases could be traced back decades, but they had exploded in the early twentieth century as public health officials designated diseases as dangerous, issued directives about how they were to be combated, and frequently ordered intrusive and restrictive measures be taken against individual citizens suspected of being afflicted with an infectious disease. Such policies were challenged on other legal bases as well, including claims that government officials were acting arbitrarily or on a mistaken set of facts, but courts almost always emphasized that "public health is the highest law" and judges should be extremely reluctant to get in the way.
There is no precedent for the measures that the government is taking now, and the constitutional backdrop has changed since courts first confronted these issues over a century ago. But historically public health emergencies have been moments in which courts have elaborated on the importance of giving government officials a free hand to respond to exigent circumstances as they think best and on the flexibility of constitutional limitations on government power.