A Potential Way Forward for Nondelegation Concerns

Focusing on time and the "nondelegation baseline" would be one way to constrain excessive delegation.

Are we on the cusp of a Nondelegation Doctrine revival? The Supreme Court's 2019 decision in Gundy v. United States suggested as much. In that case four justices indicated a willingness to reconsider the Court's current ultra-deferential approach to delegation, as did Justice Kavanaugh in a subsequent statement. So there appears to be a majority on the Court willing to chart a new course, but what will that new course be?

While a majority of the Court may be unsatisfied with current doctrine, it is not clear there is majority support for an alternative. Justice Gorsuch sketched a rough outline a possible alternative in his Gundy dissent, but that opinion only got three votes, and left many questions unanswered. Meanwhile, recent academic scholarship suggests the originalist case for a robust nondelegation doctrine may not be as conclusive as some had thought.

One possible approach in the near term would be for the Court to heighten its reliance on delegation concerns when interpreting statutes, as under the "major questions" doctrine, so as to constrain the scope of legislative delegations. More broadly, the Court could adopt something like a "step zero" inquiry for delegations, to assure itself that it is only approving those delegations that Congress actually made. Among other things, such an approach could constrain the ability of federal agencies to utilize obsolete or dormant statutory provisions as the source of new regulatory authority, or so I argue in my paper, "Delegation, Time, and the Nondelegation Baseline." [Link fixed.]

Here is the abstract:

A persistent problem for proponents of a robust non-delegation doctrine has been how to draw the line between permissible delegations of policy discretion and impermissible delegations of legislative authority. While the Court has not been willing to invalidate Congressional enactments on delegation grounds, non-delegation concerns have influenced other doctrines and judicial approaches to statutory interpretation. Operationalizing this concern for the democratic legitimacy of the laws requires more than limiting the scope or span of delegations, however. It also requires a consideration of time. When past delegations are utilized to address unforeseen problems it is often impossible to say that any particular course of action has democratic warrant. Consideration of time, combined with the constitution's non-delegation baseline, may provide a means to ope-rationalize and reinforce non-delegation principles through a delegation "step zero." Courts should scrutinize agency claims of delegated power more closely, particularly when agencies draw upon older or previously unused sources of authority. Delegation of regulatory authority should not be presumed, and if there is no delegation of authority, there can be no violation of the non-delegation doctrine. This sort of "step zero" inquiry into the nature and scope of any asserted delegation may help constrain the sorts of unbounded delegations that about which a majority of the justices and delegation's critics are concerned.

This paper, which draws upon my work with Chris Walker, was prepared as a chapter for a forthcoming AEI Press book that aims to provide guidance for a Court seeking to make the Nondelegation Doctrine meaningful again. I believe the book will be out later this year.