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Friday, February 19, 2021

The National Emergencies Act and Non-Delegation

Before I became a hedgehog on Section Three of the Fourteenth Amendment, I was working on a new article about Robert Jackson's understanding of the non-delegation doctrine. In that paper, I plan to sketch out a constitutional argument against the National Emergencies Act. Here's how this might go:

Instead of developing a broad theory of non-delegation, let's focus on the specific example of A.L.A Schechter Poultry. In that 1935 decision, the Supreme Court explained why a portion of the National Industrial Recovery Act was an invalid delegation of authority by Congress to the President. (You can't clearly say that this discussion was a holding because the Court also said that the provision at issue was beyond Congress's Commerce Clause authority.) The provision in question delegated to the President the authority to create codes of "fair competition" for nearly every industry so long as they did not lead to monopolies. The Court said that this delegation was exceptionally broad because the President was free to define "fair competition" and the codes could cover nearly every part of the economy.

Now consider the National Emergencies Act, which delegates sweeping powers to the President over a wide range of domestic subjects if, in his discretion, the President declares a national emergency. The Act does not define a national emergency. Why is this not in substance comparable to the delegation found invalid in Schechter Poultry? Granted, some parts of the National Emergencies Act relate to foreign affairs. And the Court in Curtiss-Wright more or less said that the non-delegation doctrine does not apply to foreign affairs. But isn't the rest of the Emergencies Act an invalid delegation?

One possible answer is that some people do not want to invoke the non-delegation doctrine against the National Emergencies Act because they are concerned that revitalizing that doctrine will threaten other legislation that they like. This is not so, though, if you accept Jackson's argument (which I discussed in prior posts) that only delegations to the President himself are constitutionally suspect. The National Emergencies Act is in that group, but most delegations by Congress are not.


Posted by Gerard Magliocca on February 19, 2021 at 11:38 AM | Permalink


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Posted by: Assault And Battery Lawyers Detroit | Feb 27, 2021 2:25:08 AM

It is a very interesting question, as the National Emergencies Act is truly a unique (and powerful) statute. I think it is helpful to both look at the NEA and its implementing statutes. The NEA serves as a master "key" to unlock the "doors" to 136 emergency statutes. By far the most relied upon authority is the International Emergency Economic Powers Act, which is less problematic as it relates to the President's foreign relations powers. But there are 135 *other* statutes, that are direct delegations to the President. No one has wrestled with the non-delegation doctrine and Schechter, and it would be a welcome contribution to legal scholarship...I would be first in line to read it!

I speak a bit to this for a potential climate emergency here: https://www.justsecurity.org/74914/is-climate-change-a-national-emergency/

Posted by: Mark Nevitt | Feb 26, 2021 2:49:03 PM

Important issue. Not to forget, the Congress may review and repeal decisions of the president when dealing or declaring emergency state. Here I quote from the act:

"(b) Not later than six months after a national emergency is declared, and not later than the end of each six month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated."

Here to the act:


And I quote from "Schechter":

" Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested."

Surly not constitutional powers. What is left typically to the executive branch as explained, are the details. Implementing at the field the policies dictated by Congress. It is contradicting of course, emergency powers. But too complicated.

Here to "Schechter":



Posted by: El roam | Feb 19, 2021 1:04:11 PM

Jackson's theory that delegation to agencies is more defensible than delegation to the president cannot be reconciled with sct precedent like seila law criticizing Humphreys executor and recognizing that administrative agencies wield a2 executive power.

Posted by: Hash | Feb 19, 2021 11:58:27 AM

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