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Tuesday, July 21, 2020

Nondelegation Doctrine--How or To Whom?

I've never been interested in the non-delegation doctrine. I suppose that's because I am not an administrative law scholar. Or it could just be that the doctrine was (until recently) moribund. 

But here's a thought that (for all I know) is not original. Much of the discussion of non-delegation is about the standard Congress must use in delegating. Is a statute too vague? Does the importance of the delegated issue change what "too vague" is? The trouble with these formulations is that they are . . . well . . . too vague for courts to implement well.

I wonder if a sounder non-delegation doctrine is that Congress may not delegate certain powers to certain parties at all. Suppose Congress delegates regulatory authority to a private firm or individual. We would probably think that deeply wrong even if Congress offered clear guidelines for the exercise of that discretion. ("Deeply wrong" may not mean "unconstitutional." That's why I'm thinking this through). You can find language in Andrew Jackson's Bank Veto and later commentary on that decision that says something like this. Or what about Congress delegating certain powers to the Executive Branch or to the states that in some sense are seen as core congressional powers. This could be described as a separation of powers problem, but maybe it's really a non-delegation problem.

Posted by Gerard Magliocca on July 21, 2020 at 08:15 PM | Permalink


Your proposed rule is arguably more faithful to the Schechter Poultry case than what the non-delegation doctrine has become. In going back to the original case, it is striking how much more troubled the Court was by who was deciding the content of the rules in question (the private poultry industry) than by which part of the federal government was implementing them, which is what non-delegation focuses on now.

(Having said that, I think the vagueness of the intelligible principle test has been due to the use of reasoning by analogy in applying a doctrine where all of the cases come out the same way. Courts state that “this delegation sets out an intelligible principle for the agency to follow because we found even broader delegations to state intelligible principles in cases X, Y, and Z.” But because no delegations are found unintelligible, there are no analogies to use as counter-examples to set the boundary. That’s why the Gorsuch opinion in Gundy is important - agree with it or not, he is trying to set out a framework by which to actually decide cases (as I read it, a reviewing court asks if Congress is delegating “how” powers, which is permissible, or “whether to” powers, which isn’t) that would do more analytical work than the doctrine we have now.)

Posted by: Enrique Armijo | Jul 22, 2020 8:26:40 AM

I quote as illustration, the Supreme court, in: Gundy v. US, here:

"The President’s fact-finding responsibility may have required intricate calculations, but it could be argued that Congress had made all the relevant policy decisions, and the Court’s reference to an “intelligible principle” was just another way to describe the traditional rule that Congress may leave the executive the responsibility to find facts and fill up details."




Posted by: El roam | Jul 22, 2020 5:30:13 AM

Important and fundamental issue. The best way to look at it or understand it, is to realize, that we tend to observe the principle of the so called "Separation of powers" through the doctrine or notion of "Check and Balance". But,there are others:

And one of them, is that simple notion, that the executive branch, knows the best in professional terms, how to implement the law. They know , what happens in the battle ground. They know the details. The statistics. So:

Congress is defining guide lines (general) while the executive branch, elaborate details. And that is how, efficiency is best accomplished.

So, the best understanding has to do with:

Higher or superior legislation ( Congress) and inferior one ( details, how to carry it out ) by the executive branch.

I shall illustrate it later....


Posted by: El roam | Jul 22, 2020 5:20:47 AM

Its questionable, and the way you're doing it quite acceptable too.

Posted by: Eudora 24x7 Care | Jul 22, 2020 4:31:33 AM

I agreed, it'd wrong even if it's regulatory authority to a private firm

Posted by: Comcast Care | Jul 22, 2020 2:57:43 AM

I agreed, it'd wrong even if it's regulatory authority to a private firm

Posted by: Comcast Care | Jul 22, 2020 2:57:37 AM

Gotta get those SSRN views!

Posted by: thegreatdisappointment | Jul 22, 2020 2:03:47 AM

Thanks Christine. Great work.

Posted by: Gerard Magliocca | Jul 21, 2020 10:25:13 PM

Since I just wrote a paper on delegation (and teach administrative law), I think delegation is a fantastic topic! The Supreme Court has sometimes addressed the question of to whom Congress's powers may be delegated. As I recall Wayman v. Southard notes potential problems with delegation to states, and Justice Alito's concurring opinion in Dept. of Transportation v. Ass’n of Am. Railroads addresses delegation to private parties.

My paper, The Lost History of Delegation at the Founding, is available on ssrn: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3654564. It brings to light previously overlooked but critical evidence of delegation in the founding era and demonstrates that Hamilton, Madison, and the First Congress all approved of legislation delegating highly consequential policy decisions to the executive branch. In the paper, I explain that one of the first congressional debates on delegation focused on the question of to whom power could be delegated: in 1790 the House considered delegating borrowing power to Secretary of Treasury, Alexander Hamilton, but James Madison moved to transfer the borrowing power to President Washington instead. In his arguments supporting this motion, Madison rejected constitutional objections to a delegation of Congress's Article I, section 8 power to borrow money and approved delegation of broad authority to the President.

My paper also notes that early Congresses considered and in 1793 decided to delegate certain patent determinations to private referees. Records of congressional debates do not show constitutional objections to these proposed delegations to private referees, and I am not sure the private referees ever played a significant enough role to trigger judicial review of these provisions.

I hope you find this history interesting!

Christine Chabot

Posted by: Christine Chabot | Jul 21, 2020 10:15:01 PM

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