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Justice Scalia and the Nondelegation Doctrine

This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine.  While I have only skimmed the piece, it appears to tell a story similar to the one that I would.

Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies.  One was his concurring opinion in Mistretta v. United States.  In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional.  While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission.  Unlike other agencies, it did nothing else besides promulgating these guidelines.  Thus, it was a junior varsity Congress.

By contrast, Scalia’s argument would not condemn other agencies, because they also did other things, which were executive.  So the EPA both enforces the environmental laws and passes regulations under those laws. Thus, it avoids Scalia’s condemnation of the Sentencing Commission as a junior varsity Congress.  Every year, my students are confused by Scalia’s opinion.  They think he is tough on delegations to agencies.  But he is not.  Every other agency delegation passes the test.

What about the fact that Congress might be conferring broad discretion to an agency to write regulations?  Scalia addressed this by saying the distinction between excessive discretion and constrained discretion could not be drawn.  It was a distinction of degree, not of kind.  Thus, he would not enforce it, leaving it to constitutional structure as a kind of political question.

The second Scalia opinion was Whitman v. American Trucking.  Unlike Mistretta, Scalia was writing for the entire Court this time, and so his opinion was different.  This time Scalia appeared to apply the precedents, claiming that these delegation precedents allowed ample discretion to be conferred on agencies.  And he was correct – they did allow ample discretion – although Scalia wrote the opinion in a way that appeared to embrace the ampleness of the allowable discretion, rather than to discourage it.

Scalia never addressed the original meaning on this subject, and thus his opinions are open to serious criticism.  Perhaps Scalia would have found the precedents overrode the original meaning, but he never addressed the argument.  And one gets the impression, from Scalia’s Mistretta opinion, that he liked the precedents.  They allowed him to avoid the difficult task of distinguishing between permissible and impermissible delegations, something that would have required judges to draw unclear lines.  Scalia hated having judges engage in such a task.

Contrast Scalia here with Justice Thomas.  In American Trucking, Justice Thomas concurred, noting that he doubted the precedents were consistent with the original meaning and that he was willing to reexamine the constitutionality of the lenient nondelegation doctrine in a suitable case.

Some years later, in Department Of Transportation. v. Association Of American Railroads, Justice Thomas wrote a long opinion for himself articulating what he believed the proper approach to nondelegation was.  It is hard to imagine Justice Scalia joining this opinion, which would hold many current delegations to be unconstitutional. Unfortunately, though, Justice Thomas does not really solve or even seriously address the problem that so troubled Justice Scalia – distinguishing between permissible and impermissible delegations in a principled way.

Reader Discussion

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on September 14, 2017 at 09:01:48 am

Agency law provides no legally principled way to draw that line, as a principal can delegate 100% of his authority to an agent, and COTUS imposes no limitation. As long as Congress can still act in an oversight capacity, the Administrative State you despise (on account of your obvious love affair with air and water pollution) is entirely constitutional.

Don't like administrative courts? "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Yeah, Congress can create "Article l courts," as long as Congress and the courts retain oversight capacity (they do). (There is some question as to whether magistrates are entitled to Art. lll protection (iirc, bankruptcy judges are), and Chevron deference should probably be revisited, but these are asides.)

Don't like administrative lawmaking? Congress delegates rule-making authority to the courts (they have no inherent authority): "The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title." 28 U.S.C. §2071(a). They have to submit rule changes to Congress, which retains ultimate control.

And do you honestly think that the Army didn't make its own rules in 1791?

The Framers understood agency law. You don't appear to.

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LawDog
on September 14, 2017 at 13:05:03 pm

Congress has its own reasons for its fondness for delegation; SCOTUS, their own reasons for deferring to Congress & Agencies.

I tend to believe delegation, as well as Chevron and Avers deference are each unconstitutional. But, assuming delegation and deference are both completely Constitutional, there seems little question that the results can in some (I think many) instances undermine separation of powers, checks & balances, and due process protections, etc.. But, the more detrimental, in my view, is that too much largely unchecked power is shifted onto an unelected bureaucracy.

When a President's ideology is aligned closely with that of the majority of bureaucrats, together, they will spit out new regulation faster than LawDog will spit out his coffee onto his computer screen upon reading this commentary.

When the President, like Trump, is not aligned to the ideology of majority of bureaucrats, the President's policy initiatives will be stymied and undermined at every turn by what really are in most cases, career clerks, as we seem to have seen a plenty in the past nine months.

It is my opinion, that if Congress can constitutionally delegate their powers to the Executive, then the Executive can, in an equally constitutionally manner, refuse to accept these delegated powers; or any powers, that do not already rightly belong to the Executive under Article II. But, I can't imagine a situation where a President would ever attempt such a refusal of delegated powers at this late point in the game; it would have had to happen at the earlier part of the 20th century when AS was at its infancy, and certainly such a move would run contrary to FDR's broader policy initiatives.

In Summary, as LawDog says, "a principal can delegate 100% of his authority to an agent"; and I am quite sure what he asserts is true; I am less sure that (theoretically) the Agent, in this case the Executive, as a co-equal Branch, could not also constitutionally refuse/decline to become the principle's agent; and in so doing, decline to accept the delegated powers, if he or she so desired, or under his or her own interpretation, considered it unconstitutional or detrimental to Republican Democracy, to do so.

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Paul Binotto
on September 14, 2017 at 15:27:49 pm

PB: "It is my opinion, that if Congress can constitutionally delegate their powers to the Executive, then the Executive can, in an equally constitutionally manner, refuse to accept these delegated powers; or any powers, that do not already rightly belong to the Executive under Article II."

lt's hard for me to think of a situation where this would come up. The closest one l can think of is the Obama Admin's refusal to defend DoMA. Remember that the President takes an oath to "take care" that the law be faithfully enforced, and the remedies for failure range from an injunction to impeachment.

PB: "I tend to believe delegation, as well as Chevron and Avers deference are each unconstitutional. But, assuming delegation and deference are both completely Constitutional, there seems little question that the results can in some (I think many) instances undermine separation of powers, checks & balances, and due process protections, etc.."

How so? Congress has oversight over the agency, the Exec is tasked with operating the agency in accordance with the law, and the judiciary is tasked with ensuring that individual rights are protected.

Think about it rationally. lt would be impossible to run an advanced capitalist republic without a lot of delegation.

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LawDog
on September 14, 2017 at 17:21:07 pm

Mr. Dog,

Thanks for your reply. I understand what you are saying, I admitted as much when I said "But, I can’t imagine a situation where a President would" - I'm just thinking theoretically.

Here's where I get stuck on this, if the President strongly believes that in his/her interpretation of the Constitution, that its unconstitutional for Congress to delegate powers, would he still have to "Take Care" to enforce this law? Doesn't "Take Care" really mean, "faithfully enforce and constitutional law". If the law is unconstitutional, the law is not an enforceable law per se.

An absurd example to try and make my point: Suppose Congress some how garnered enough votes to pass a law that would round up all short, over-weight Italian Americans and put them in concentration camps. Of course that would be not only an unconscionable law, but an unconstitutional one. Would the President, who clearly knows this law to be unconstitutional, still have the duty to take care that it be enforced?

Of course, if the President were to refuse to accept delegation, there is a process to deal with it, as you say.

I know that it Congress has oversight, and Exec. its role to operate it legally. I question if in most cases, Legislators even know what's in a bill they are voting on, much less that they are able to provide oversight, but in the most superficial terms, of the behemoth administrative complex. The weakest link, I suppose is Judicial deference. If delegate powers are here to stay,( as you say, "lt would be impossible to run an advanced capitalist republic without a lot of delegation") then in the very least, judicial deference should be extremely limited than currently.

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Paul Binotto
on September 14, 2017 at 20:19:07 pm

They don't. Here's their full-time job: https://www.youtube.com/watch?v=Ylomy1Aw9Hk

PB: "judicial deference should be extremely limited"

lf our courts were less corrupt and partisan, l'd feel better about it. Right now, l'd trust an agency staffed by experts over the partisan political hacks infesting our benches.

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LawDog
on September 14, 2017 at 20:47:32 pm

Ha-ha!! As I suspected, Mr. Dog, as I expected!

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Paul Binotto

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