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Sunday, December 20, 2020

The Non-Delegation Doctrine Reconsidered

Let me start my posts on Robert Jackson's brief in Currin v. Wallace. I'm not sure how to post a PDF of the brief, but I'll see what I can do. In the meantime, let me set up the background and then address one of the Solicitor General's main points.

Jackson wrote the brief to defend the constitutionality of the Tobacco Inspection Act, which was a standard New Deal law that regulated the tobacco market. One of the arguments against the Act was that Congress unconstitutionally delegated authority to the Secretary of Agriculture. The United States rejected that assertion and the Supreme Court agreed that the Act did not unreasonably delegate. But the United States also urged the Court (unsuccessfully) to revisit the entire non-delegation doctrine. The opening prose of that section is in Jackson's unique style, including the unusual word choice of "uncanalized"

The contentions in this case illustrate the rather fantastic limitations upon the Congress which counsel read into the decisions of this Court on the subject of delegation of power. The confusion and uncertainty surrounding this subject not only lead earnest members of the profession into repeated attacks upon legislation as unlawfully delegating power, but also present to legislators a dilemma in framing legislation.

They are confronted on the one hand with the nebulous requirements of due process. If they pronounce a rigid set of standards, unforeseen cases to which the standards may apply present the danger of unconstitutionality because of caprice or arbitrary application. If, on the other hand, they seek to avoid the danger of capricious and arbitrary application through provision for flexibility in application, the statute is then attacked for undue delegation, an equally nebulous and undefined concept. This dilemma of avoiding the infirmity of unlawful delegation by running into the infirmity of caprice, or vice versa, faces legislators in most of their important tasks.

There is urgent need for some clarification of the doctrine of non-delegability. If it is to be applied to legislation, it is only just to legislators that standards be clearly outlined by which the adequacy of legislative standards is to be tested. The invocation of a vagrant and uncanalized judicial doctrine to prevent vagrant and uncanalized legislation leaves both legislators and litigants confused.

After gesturing in the direction of saying that what constitutes unreasonable delegation is "a subject of questionable justiciability," Jackson then offered a rationale for the Court's non-delegation decisions:

[T]he only cases in which legislation was held unconstitutional for excessive delegation were the Schechter and Ryan cases, both of which dealt with a delegation to the President himself. These cases, therefore, involve the question of separation of powers, for the office of President was not created by the Congress and the President was not responsible to the Congress. The executive was there endowed with nonexecutive functions. The legislative power was there delegated to the President, whose powers are in many respects independent of the Congress. It is generally held that the Judiciary will not assume nonjudicial functions, and that Congress cannot assume nonlegislative functions. It was, therefore, with a measure of consistency that the Executive was excluded from legislative functions beyond those considered necessary in filling in the details of legislation and in determining its applicability. 

It is apparent, however, from that circumstance in those cases, that there is no precedent in American constitutional law for striking down legislation which delegates legislative power to an agency created by Congress and controlled by Congress, and where the agency exercising the delegated powers is completely subject to the control of Congress and may at any time be abolished. Whether delegated to so-called independent establishments or boards, or whether delegated to members of the Executive Department whose offices owe their existence and powers to the Congress, these delegations have always been sustained.

Let's ponder this analysis for a moment. First, I think the argument rests on an understanding of executive agencies that not everyone shares. Today many people would say that the President, not Congress, controls the executive agencies. Thus, the distinction between a direct delegation to the President and one to the Secretary of Agriculture is not significant. But maybe that is wrong. Congress does have more influence over Cabinet Departments than over the President himself. Second, Jackson's analysis makes more sense in the presence of the legislative veto; a practice invalidated by the Court in Chadha but used often in the 1930s.

Still, Jackson's rule has some advantages. First, Congress would be on notice that delegations to the President could be invalidated but delegations to executive agencies or independent bodies cannot be invalidated. This would not, of course, satisfy some critics of how the Congress delegates its authority to agencies, but as a prospective guide for Congress Jackson's standard would be useful. Second, there are many delegations of authority to the President himself that would be on shaky ground under this test. To take one example, the National Emergencies Act is a delegation of exceptionally broad power to the President himself, not to an agency. I think a substantial attack could be mounted against this statute if Jackson's non-delegation doctrine were the law. There are probably many other examples, though I'm not an administrative law expert.

Next time I'll talk about another thoughtful aspect of Jackson's brief on the difference between the delegation and the alienation of power that may connect up with his concurrence in Youngstown.   



Posted by Gerard Magliocca on December 20, 2020 at 08:26 PM | Permalink


Here you go. It is really fascinating.


Posted by: Marty Lederman | Dec 27, 2020 7:39:10 AM

Important issue. But, delegation, doesn't mean control. Why to think so? it is not clear here ? Delegation of power, means, that one federal agency, would execute the statute or its provisions for example, for, they have the expertise, the knowledge, the control, the mastery, for executing simply, the intent of the Congress. I quote from "Currin":

We have always recognized that legislation must often be adapted to conditions involving details with which it is impracticable for the legislature to deal directly. We have said that-'The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility'. Panama Refining Co. v. Ryan, supra, 55 S.Ct. 248. In such cases 'a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details'. Wayman v. Southard, 10 Wheat. 1, 43. We think that the Tobacco Inspection Act belongs to that class.

End of quotation:

So, Congress legislates, but, that doesn't mean control simply. The control on the contrary, is left to the executive branch. Unless, Congress would re- legislate, and re- grant power in turn, to executive branch, to exercise its own discretion. That doesn't mean, that Congress really controls the executive branch.

Here to " Currin" by the way:



Posted by: El roam | Dec 20, 2020 10:37:02 PM

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