Nondelegation for the Bill of Rights
The nondelegation doctrine is about more than policing administrative agencies. In a forthcoming article in the BYU Law Review, I identify a line of cases in which the Supreme Court has applied a principle of nondelegation to enforce the Bill of Rights. What I call the “Bill of Rights nondelegation” cases span the First, Second, Fourth, and Fifth Amendments, and they demonstrate that the nondelegation doctrine (when the term is properly understood) is alive and well at the Court.
Article I of the Constitution vests “[a]ll legislative Powers herein granted” in Congress. The common conception of the nondelegation doctrine is that the Constitution prevents Congress from delegating one of those Article I-vested legislative powers to the executive branch—at least without an intelligible principle to guide the executive. For example, suppose Congress passed a statute saying that the Secretary of Commerce had the power, in his full discretion, to regulate any and all interstate commerce. Such a statute would probably violate the nondelegation doctrine: here, Congress delegated a vested legislative power (the power to regulate interstate commerce) to the executive branch without giving the executive official some intelligible principle to follow in regulating interstate commerce.
But as the article explains, this constraint on the separation of powers is just one version of the nondelegation doctrine. Call it the “Article I nondelegation doctrine,” given that it enforces the Vesting Clause of Article I. There is also a wholly separate nondelegation doctrine: the Bill of Rights nondelegation doctrine. To be sure, the Court has not applied a nondelegation rule to every provision of every Bill of Rights amendment. (Nor do I consider here whether the Bill of Rights nondelegation doctrine is consistent with the original meaning of the Constitution.) But we can tie together seemingly distinct cases into this coherent doctrinal framework.
Start with the First Amendment cases—in particular, cases about the granting of permits for speech. Time and again, the Court has enforced the First Amendment when a permitting regime gives unfettered discretion to a licensing official to approve or deny these permits. The problem is that the legislature, not the executive, needs to be the one setting criteria for when the government may grant a permit. Plenty of these criteria could be consistent with the First Amendment: imagine a rule that no permits shall be issued after midnight in residential neighborhoods—a quintessentially content-neutral “time, place, and manner” restriction. The point is that the legislature, not the executive, has to be the one to set these criteria.
Thus, the permitting scheme does not necessarily infringe a substantive right. Rather, the fact that the legislature delegated unfettered license-denying discretion to the executive (and the chill that discretion could have on the exercise of the First Amendment right) presents the constitutional difficulty. Various cases demonstrate the principle: Saia v. New York, Largent v. Texas, and Lakewood v. Plain Dealer Publishing Company, to name a few. In Lakewood, the Court explained that “the mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.”
A recent Second Amendment case is also on point. In New York State Rifle & Pistol Association v. Bruen, the Court confronted New York State’s discretionary denials of concealed-carry permits to two applicants. Under New York’s so-called “may-issue” permitting scheme, licensing officials maintained discretion to deny concealed-carry permits even if applicants met the statutory criteria. The Court purported to be reviewing the denials, but it ultimately declared the whole permitting regime unconstitutional. As Justice Kavanaugh pointed out in concurrence, “New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.” He further noted that “the unchanneled discretion for licensing officials and the special-need requirement … in effect deny the right to carry handguns for self-defense to many ordinary, law-abiding citizens.”
But the Bill of Rights nondelegation doctrine extends beyond discretionary permitting regimes. Indeed, the Fourth Amendment spells out its rule of nondelegation (or, at least, anti-discretion) explicitly when it provides that judges can only issue warrants “particularly describing the place to be searched, and the persons or things to be seized.” When a judge signs off on a vague warrant, he delegates—in practice—to the police the power to ensure that the warrant is sufficiently particularized. When a warrant is vague, the police themselves functionally fill in the warrant by searching whatever they decide to search. But as the Court in Whitman v. American Trucking Associations—an Article I nondelegation case—explained, the executive cannot cure a delegation problem by cabining its own authority post hoc. When discretion is delegated, the nondelegation doctrine kicks in; the warrant particularity cases bear this out.
The final strand of Bill of Rights nondelegation cases can be found in the Fifth Amendment’s void-for-vagueness doctrine. Here, courts will declare a statute unconstitutional when it is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” One of the Court’s main concerns with vagueness has been that “[s]tatutory language of … a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law.” This non-abdication requirement, which enforces the Fifth Amendment’s Due Process Clause, sounds nondelegation notes. Indeed, as the article explains, various scholars and jurists have already connected the void-for-vagueness doctrine to the nondelegation doctrine.
The Bill of Rights nondelegation doctrine has a few potential applications, including with respect to the Seventh Amendment right to a jury trial issue that has recently become consequential in administrative law. In a recent case called Jarkesy v. SEC, the Fifth Circuit held that Congress violated the nondelegation doctrine in the Dodd-Frank Act. Congress had vested the Securities & Exchange Commission with unfettered discretion to choose to bring securities fraud actions in federal court or in agency tribunals. The agency tribunal proceedings offer no jury, which the Fifth Circuit also held violated the Seventh Amendment’s jury trial right.
Professor Jonathan Adler criticized the ruling, arguing that the Fifth Circuit’s nondelegation holding does not comport with the classic understanding of the nondelegation doctrine. As Adler argues, “The delegated power at issue is the SEC’s authority to make case-by-case decisions about how to enforce the securities laws against individual regulated entities,” not a legislative power to make broad rules. And Adler is right—the SEC scheme at issue does not violate the Article I nondelegation doctrine. But as the licensing cases demonstrate, the Bill of Rights nondelegation cases admit of no distinction between case-by-case decisions (sometimes called “adjudications”) and legislative rulemaking. Thus, understanding the Bill of Rights nondelegation doctrine as separate from the Article I nondelegation doctrine could square the circle of Jarkesy’s nondelegation holding.
The distinction has important implications. I have argued elsewhere that the Northwest Ordinance—which some have cited to undermine originalists’ invocation of the Article I nondelegation doctrine—is irrelevant to the question of whether the Article I nondelegation doctrine is consistent with the original meaning of the Constitution. This is because Congress passed the Northwest Ordinance pursuant to its power under the Property Clause of Article IV. Seeing the Article I nondelegation doctrine as a particular strand of the nondelegation doctrine can focus originalist inquiry, illuminate the possibilities of the nondelegation doctrine in its various forms, and mark the doctrine’s limits depending on the question at issue.
Moreover, the existence of a Bill of Rights nondelegation doctrine evinces that the nondelegation doctrine writ large is no dead letter. Some have argued that for nearly a century, the Supreme Court has not applied the nondelegation doctrine to declare a statute unconstitutional. That argument is only true insofar as one is talking about the Article I nondelegation doctrine; the Bill of Rights nondelegation cases demonstrate that the Court continues to care deeply about delegation and unfettered discretion. In short, the nondelegation doctrine is alive and well.
In addition, the cases show that the Court has recognized a principle of nondelegation when enumerated rights are at stake. A creative litigant could perhaps use this observation to expand the protections of the Bill of Rights, safeguarding these rights even before a bureaucrat violates them. Indeed, in the Bill of Rights cases, the delegation is the problem—regardless of what the government official does with the delegated discretion.
Contrary to popular belief, the Court is applying the nondelegation doctrine rigorously and regularly—at least in Bill of Rights cases. Understanding the existence of the Bill of Rights nondelegation doctrine could have profound implications for how we understand the domain of the nondelegation doctrine (including its Article I component), the continuing vitality of the “nondelegation doctrine” taken as a whole, and the reach of the Bill of Rights. In addition to enforcing the Bill of Rights’ substantive protections, the Court has also vindicated the separation of powers in Bill of Rights cases through the enforcement of a kind of nondelegation doctrine.
This essay represents the views of the author alone.