The Volokh Conspiracy

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Executive Power

The Domestic Policy Czar

A revival of the nondelegation doctrine isn’t likely to massively retrench either the scope of the regulatory state or the president’s ability to steer agency discretion.


This is the third in a series of posts about my new book, Contested Ground: How to Understand the Limits of Presidential Power. The last post focused on the President's control of the executive branch. Today's post focuses on the President's control of domestic policy.

Nearly all of the most controversial presidential actions are taken under authority granted by Congress, at least as to actions within the United States. A hotly debated question is how much discretion Congress can give the executive branch in implementing laws. This is sometimes phrased in terms of delegation to "faceless bureaucrats," but that's something of a red herring. Major policy decisions in today's federal government are closely controlled by the White House. When the Obama Administration issued ambitious regulations to prevent climate change, the key decisions weren't made by anonymous civil servants. The White House was in firm control. And that was equally true when the Trump Administration rolled back those same regulations. Ninety-nine percent of the time, when we're talking about major policy decisions, we're effectively talking about delegation to the President. Sometimes independent agencies make major policy decisions such as the FCC's wavering policies about net neutrality. Even so, the decisions are made by people who were appointed by the President and confirmed by the Senate, as are cabinet officers and federal judges.

There's been a general agreement that Congress can't simply tell the President or an agency to make whatever regulations on whatever subjects that seem appropriate. The problem is trying to draw some kind of line between that and the kind of policy making that is inherent in implementing laws. In all of American history, the Supreme Court has only found two occasions to declare a federal law unconstitutional because it gave away too much of Congress's lawmaking power. There are vigorous arguments, on and off the Supreme Court, that this judicial passivity should be abandoned, and that Congress has given too much discretion to Presidents and their appointees.

Making major new regulations is a painfully slow process, requiring voluminous data gathering, exhaustive analysis, and often multiple rounds of judicial review and revision. Congress is also a lot less free with giving away its authority than many people believe. It's true that some old statutes are pretty sweeping, but modern statutes like the Clean Air Act can cover hundreds of pages with detailed instruction to the agency. This is not to say, however, that they don't require policy judgments by agencies. For instance, pollution statutes frequently require EPA to determine the best available technology for controlling some form of pollution. That determination requires consideration of engineering matters, costs, and pollution reduction benefits.

Advocates of a robust nondelegation doctrine contend that the original understanding of the Constitution narrowly restricts the kind of authority that can be given the executive branch. I'm prepared to believe that the Framers thought there were limits on delegation. It's more difficult to discern where they thought the limits might be, given that Congress made some very broad delegations of authority almost as soon as the government formed.

Other scholars have written in much more depth about the history. J.D. Mortensen and Nicholas Bagley have found some strikingly broad delegations. Ilan Wurman has attempted to explain these broad delegations as falling within a system of exceptions. Nicholar Perrillo points to a remarkably broad delegation to tax commissioners charged with valuation of property.

My own favorite is the first patent statute. Defining IP rights is certainly a major policy decision. Yet a 1790 law leaves this policy decision up to the executive branch. Discretion in the original patent statute for issuing a patent was about as wide as you can imagine: whether "the invention or discovery [was] sufficiently useful and important." Based on all this history, I'm not prepared to say that the Framers thought there were no constitutional limits to delegation, but it does seem clear they were prepared to countenance some very broad delegations indeed.

Be that as it may, it seems clear that there are currently at least five Justices who would think we need a tougher standard for delegations by Congress. It remains quite unclear, however, what that standard would be. Some observers, at least, seem to be hoping for a standard that would knock out a wide swathe of the current regulatory state.

A good test case is provided by the lynchpin of federal air pollution regulation. Section 109 of the Clean Air Act directs EPA to set air quality standards based on public health. The standards are supposed to provide an adequate margin of safety to protect public health. Setting the standards require consideration of a lot of very technical evidence to determine health impacts. It also requires judgments about how much of a margin of safety to provide and at what point impacts on individuals add up to a public health issue. Justice Scalia wrote an opinion for the Court upholding this provision against a nondelegation challenge.

How would the current Court decide this case? Congress made one extremely important and controversial policy judgment: only health, not cost, should be considered in setting the standards. And much of the agency's task involves expertise rather than policy decisions. On the other hand, there are certainly judgment calls to be made, and even small shifts in the standards can have major economic impacts. The primary clues about the Court's future direction are found in a dissent by Justice Gorsuch and concurrence by Justice Kavanaugh. It's not obvious how to apply their tests to this provision.

It's certainly conceivable that a newly invigorated nondelegation doctrine would knock out that provision, and with it about two-thirds of the Clean Air Act. It seems unlikely to me that the Supreme Court will do anything so radical and destabilizing. It's not even clear to me how Justice Gorsuch, who has been in the lead on nondelegation, would come out. The answer might depend on whether he consider risk assessment to be a factual determination or a policy decision. Justice Kavanaugh has his own favored approach, but so far he hasn't shown signs of the kind of radical fervor required to invalidate everything from modern environmental law to the securities laws. And no one knows what Justice Barrett thinks.

The thrust of the nondelegation doctrine is that, in an ideal world, government regulatory policy would be unaffected by presidential elections. All the important policy decisions would have been made by Congress, leaving the executive branch nothing to do but fiddle with the details. That may seem ideal to those who would prefer no regulation at all and hope that congressional gridlock would guarantee that result. It's not clear to me that this would be the result, since public demand for regulation wouldn't go away. Putting decisions like setting air quality standards in the hands of Congress also seems unfortunate in other ways, as compared to the kind of deliberative administrative process we have today. It would diminish the role of science and economics in regulatory decisions. It's not even clear that it would make decisions more politically accountable. We know who to blame when the Biden Administration or the Trump Administration makes a major shift in regulatory policy. Who do you blame for an obscure provision in a thousand-page omnibus bill? Delegation has its benefits.

This is not to say that we should be concerned about executive discretion and how it is exercised. But constitutional law is a blunt instrument for controlling and channeling discretion. In my view, we have more serviceable tools for ensuring responsible decision making in administrative law and statutory interpretation.

Tomorrow, I'll shift away from domestic policy and take a look at the presidential war power.