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.

Comments

[KCar]

Finger Prints 2.0. Not being a rapist, I am much more concerned about facial recognition as an average citizen.

[KCar]

sorry wrong thread. dont know how this got here.

[DaivdBehar]

Still an important subject for a legislature, not for a court, nor for a partisan, political executive operative.

Should I be able to spot a pretty girl across a stadium, and be able to unendingly contact her in all aspects of her life? Should she be left alone, instead, and protected from harassment, by the 100 other guys with the same idea? That is a legislature grade policy decision.

[DaivdBehar]

All executive regulations are void. All judicial review is void. Article I Section 1 is written at the 8th grade level. The word “all” is a first grade vocabulary word. I will not use the d-word as I promised Leo. However, “all” lawmaking power belongs to the Congress.

Supreme Court decisions and executive regulations should be considered advice, and learned opinion. They are really baseless feelings by know nothing bookworms with no real world experience. They are influenced by the self interests of the billionaire, oligarch owners of the media and of the Democrat Party. They set the tax sucking, rent seeking culture of the Beltway. No one can overcome local culture. Congress should then enact the Federal Register and all Supreme Court decisions, after reading every word out loud into the record.

The voters can then express their opinons about the effects of these decisions at the next election.

[Martinned]

Makes sense. Stuff like this is basically the British approach. If there is more than one plausible interpretation of the statute, they prefer the one that doesn’t interfere with liberty/fundamental rights, etc.

The basic idea is that the objective of statutory interpretation is to give effect to the intentions of the legislature. Ordinarily, the assumption is that the legislature means what they said, hence textualism. But it’s perfectly fair to also assume that, absent clear indication to the contrary, the legislature didn’t intend to enact an unconstitutional statute (constitutional avoidance), that it didn’t intend to delegate unlimited powers to the executive branch, etc.

[ReaderY]

Didn’t the First Congress delegate federal courts the task of creating an entire law of admiralty pretty much however they saw fit?

If the First Congress could delegate things like that and not think there was a constitutional problem, isn’t the originalist case for a robust non-delegation doctrine at least somewhat shaky?

[DaivdBehar]

Do you want know nothing bookworms making laws about highly tecnical subjects like Admiralty or any other aspect of life? The bast approach is to listen to all sides, the technical insiders with their interests in making a living, the users with their interests in safety and in saving money, and the bystanders who do not want il spills on their beaches. That is the strength of the legislatures to listen to all, to compromise, to amend any mistaken rules.

[ducksalad]

It wasn’t as an important issue when there was much less authority to delegate.

[Martinned]

You mean other than the authority for officials to make pretty much any laws they liked in the territories? https://columbialawreview.org/wp-content/uploads/2021/03/Mortenson-Bagley-Delegation_at_the_Founding.pdf

[ducksalad]

That was a large grant of power, but if we’re doing originalism one could argue that the framers, who represented states, didn’t think that such grants of authority would end up applying inside their states.

[Martinned]

Assumptions don’t count unless they’re included in the written text of the constitution. (Unless you’re doing original intent originalism.)

[LawTalkingGuy]

That may be a very good rule. But isn’t this just making up an interpretive rule out of whole cloth? Something that originalism is supposedly designed to prevent?

[Martinned]

Originalism is about how to interpret the constitution. This interpretative rule is about how to interpret statutes. The rules for doing that are still a creature of case law, and probably unavoidably so.

[LawTalkingGuy]

Right, but originalism claims to be the only legitimate interpretive method. If the originalist evidence suggests there is not a non-delegation doctrine, then you can’t just make up a rule of statutory construction to achieve the same or similar results under the theory. To do otherwise would be illegitimate.

[Martinned]

Well, originalism claims to be the only legitimate interpretive method for the constitution. And the only originalist idea here is that it is for the courts to say how statutes are interpreted, and that there are multiple canons of interpretation that can legitimately be used. That doesn’t seem like a hugely controversial statement. What those canons of interpretation are is not something that originalism has a view on one way or another. (Although in practice originalism for the constitution tends to correlate with a preference for textualism for statutes, which is what makes this suggestion so amusing.)

[LawTalkingGuy]

It’s not the only originalist idea here, though. This statutory interpretive method is being crafted in response to originalist evidence that there is no non-delegation doctrine. Making up a rule of statutory construction to get around originalist evidence that says something is permitted seems to be inconsistent with the theory.

Let’s assume there is a lot of overwhelming originalist evidence regarding a broad reading of the commerce clause. The justices decide to get around this by creating a rule of construction that interprets “commerce” in any federal statute exceedingly narrowly. Doesn’t that present a problem that the only legitimate method of interpretation can so easily be undercut by inventing a rule of statutory interpretation to achieve a similar result?

[Martinned]

I would put the problem differently:

Since time immemorial, judges who “develop” the common law have pretended that they aren’t creating new law, but are simply “finding” law that was already there all along.

Something similar is true for an interpretation of a given statute. If the court decides to overturn its precedent on the interpretation of statute X, or to interpret statute Y in a way that’s completely inconsistent with what people thought it meant, it pretends that its new preferred interpretation was the only right one all along.

Canons of interpretation are also like that. We’re all supposed to pretend that they existed all along, and that there isn’t room to create new ones. You just restate/redefine existing canons.

In this case, the logical way to explain where this new non-delegation canon of interpretation came from would be to derive it from the established canon of constitutional avoidance, whereby the courts try to avoid interpreting statutes in a way that makes them unconstitutional. But, as you say, that’s something an originalist wouldn’t be able to do in this circumstance.

[LawTalkingGuy]

I agree with all of that. (And I think we agree more than we disagree?) My point is that this approach, which may be the best rule of construction for courts to follow, presents some conceptual problems for self-professed originalists. At least insofar as the claim that it is the only legitimate method of interpretation rather than simply the best one or a useful one.

[Martinned]

Yes. Because originalists are typically also (small-government) conservatives, they occasionally run into difficulty when the originalist answer isn’t very conservative. That would be quite amusing to watch for the rest of us, except that there are now 6 conservative justices on the Supreme Court who don’t have to care about theoretical niceties.

[Eric Lengell]

I admire the attempt to create a workable framework for applying the non-delegation doctrine. However, I doubt this framework or a more robust major question doctrine (that would preclude not only deference to agency action but also preclude any agency action in certain areas) will cabin much administrative action or discretion.

The problem, it seems to me, is legislation that uses broad language capable of many reasonable interpretations (allowing an agency wide discretion to execute the law within this range). Assuming the goal is to cabin administrative discretion significantly, a better approach is to apply no deference to agency interpretation of the ambiguous legislation and then analyze whether the legislation is void for vagueness (regardless of whether the agency has specified a particular interpretation).

[Martinned]

Is there a general rule that vage statutes are void? (Outside the context of criminal law or first amendment law?)

[Aladdin's Carpet]

Well, why would such a rule be limited to criminal law? I dont believe it is.

(More generally I subscribe to Justices Gorsuchs argument that there ought to be the same protections in civil law as criminal law, though I understand that isn’t the current reality.) But outside that, I think vagueness doctrine applys as a matter of current law.

[Martinned]

Those beliefs are great, but it would be greater still if you had some precedent to back it up.

[Stephen Lathrop]

Assuming the goal is to cabin administrative discretion significantly, a better approach is to apply no deference to agency interpretation of the ambiguous legislation and then analyze whether the legislation is void for vagueness (regardless of whether the agency has specified a particular interpretation).

Please tell where in the historical record you would look to find support for that goal, or for the, “better approach.”

Remember, when you invoke originalism, you ought to deprive yourself of every post-founding-era development in legal interpretation. All that stuff which happened between then and now the founders never considered at all. They knew no more about such stuff than we do now about changes to come in the year 2046.

[Stephen Lathrop]

Meanwhile, recent academic scholarship suggests the originalist case for a robust nondelegation doctrine may not be as conclusive as some had thought.

Indeed.

Here is a non-delegation doctrine which ought to pass originalist scrutiny:

1. Is the objective sought by the delegation within the scope of the enumerated powers decreed by the Constitution?

2. Are the means authorized by the delegation expressly forbidden by the Constitution?

If the respective answers are, “Yes,” and, “No,” then by originalist standards it seems like a legitimate delegation. To disagree, find original historical records which say otherwise.

Not permitted? Arguments based on what the founders would have thought.

[ducksalad]

It’s not that your (1) and (2) are wrong, it’s the interpretation of (1).

In most of the cases currently being disputed, the founders would not have believed *any* branch of the federal government had the authority in question.

[Martinned]

In that case, there seems to be a perfectly simple originalist solution without any need for a non-delegation doctrine.

[Stephen Lathrop]

ducksalad, did you violate the, “Not permitted,” term on purpose, or without noticing you were doing it?

Never mind. You did it.

Now to turn your assertion about what the founders would have believed into originalism, you have to show they did believe it, by reference to the historical record. Good luck.

More generally, argument in the form, “I will decide what the founders believed about this subject, and tell you what a court should do about it,” does not supply the constraint claimed for originalism. There has to be constraint on what you can decide. One potentially wholesome constraint on what an originalist can decide would be to limit claims to those a trained historian would make while applying professional standards of analysis to the historical record, with citations.

Would-be originalists arguing for other standards need to demonstrate why they can work better than the one above. No one ever seems to try.

[ducksalad]

Honest question from a non-lawyer:

Is there an accepted way for courts to handle situations when two different agencies use their delegated power in directly contradictory ways?

For example, if the CDC used their “anything that impacts health directly or indirectly” power to set a national maximum rent of $800 for a certain category of apartment, and the FTC used their “anything that looks like unfair competition or price undercutting” power to set a national minimum rent of $900 for the same category of apartment. Is there some rule of interpretation that says which one wins, if either?

[Martinned]

When in doubt, lex posterior derogat legi priori.

[ducksalad]

A real answer! Thank you.

[Martinned]

Not as much as you’d think.

To stick with your example: Which one counts, the later regulation or the later statute passed by Congress? It may well be the latter, because the logic is that later statutes may implicitly repeal earlier ones. So Congress’s 2015 CDC act is implicitly (partially) repealed by its 2018 FTC act. Whether the CDC in 2020 has the power to overrule something done by the FTC in 2019 is a much more difficult question, and ultimately one of statutory construction. (Did Congress intend to give the CDC the power to overrule other federal agencies? Does it say that anywhere in the CDC act of 2015?)

[Ben_]

The Feds don’t have the constitutional authority to regulate rents. Many, many of these questions could be resolved by returning to constitutional order. Overturn Wickard and probably also Raich and so many problems go away.

Many of the others could be resolved by Congress.

[apedad]

“When past delegations are utilized to address unforeseen problems it is often impossible to say that any particular course of action has democratic warrant.”

Isn’t this what the Federal Rulemaking Process is all about?

https://www.thebalancecareers.com/steps-in-the-federal-rulemaking-process-1669507

According to this, there’s still public input and oversight – and nothing stops a party from taking the govt to court to stop a rule.