The following is an opinion contribution and reflects the author’s views alone.
The doctrine of nondelegation has in recent years increasingly become a mainstay of conservative and libertarian jurisprudence. This counterrevolution against the bureaucratic hedonism of the federal administrative state crescendoed most recently with the appointment of Neil Gorsuch to the Supreme Court of the United States. With a devoted non-delegationist having taken a seat on the Court, it is now worth addressing, in light of our other constitutional commitments, the merits of the doctrine and some of the strongest arguments raised in its opposition.
It is a fairly uncontroversial observation that explicit constitutional demarcation of federal powers and responsibilities bespeaks an implicit constitutional phenomenon that we have come to call the “separation of powers.” Inspired by the French political philosopher Charles-Louis de Secondat, better known simply as Montesquieu, the Framers believed strongly that constitutional and political commitments to separation of powers would best guard the new republic from the collapse into tyranny that had befallen the republics of yore.
The Framers’ adoption of Montesquieu’s philosophy was encouraged in large part by some of their own observations about the enigmatic state of human nature. First, they astutely realized that “if angels were to govern men, neither external nor internal controls on government would be necessary.” Alas, men are not angels, and they rightly surmised that such controls on human ambition would indeed be necessary. Having determined that no external checks on the federal government could properly curb the expansive power that it would naturally grow to wield, they conceived a system of government that would internalize the checks and incentivize governmental officers to abide by the rules of the game. This incentive would play out in the form of a republican government with no permanent officials, ensuring that power would be a function of office, not particular officers. With each of the three branches jealous for its own power, none could gain an upper hand and subdue the others. That, at any rate, was their theory.
The present state of our governmental structure and dynamic reflects a reality at great and irreconcilable odds with the theory of our founding. We bear witness to an increasingly dysfunctional Congress, an executive of rapidly proliferating powers, and a judiciary whose partisan biases have been laid bare by the political ascendancy of Donald Trump. Current judicial doctrine on the question of delegation of power is deeply problematic on multiple fronts. Broad congressional delegations of power, current doctrine holds, are perfectly in line with constitutional principles, provided such delegations contain “intelligible principle[s],” by which the executive may be expected to abide. Such a standard is troublesome for fairly obvious reasons, the most significant of which is the cloud of indeterminacy that surrounds it. What counts as an “intelligible principle?” Who adjudicates intelligibility? Who gets to interpret the requirements of the principle? These are difficult questions that, while raised close to a century ago, have generally gone unanswered by courts. The resulting response to the question of what counts as an “intelligible principle” is, in practice, anything.
It is today unsurprising for congressional delegations to be held valid under such broad and patently unhelpful guiding principles as “protect[ing] the public interest,” or “generally fair and equitable.” This has allowed Congress to freely delegate legislative power to executive agencies, which find themselves untethered from any meaningful restrictions on their discretion. Indeed, courts have seen to it that agency discretion extends far beyond guiding principles and into the very content of the laws that an agency is charged with executing. Not only do agencies find themselves able to squirm out of any “intelligible principle” requirements, but they are also broadly deferred to on the principal question of what statutes governing their very actions mean or require. Combined with the judicial understanding that agencies must also be deferred to on their interpretations of their own regulations, there is virtually no meaningful boundary to congressional delegation or to agency action in pursuance of the same.
While it may seem reasonable to defer to an agency on the interpretation of a rule that it has authored and adopted, Auer v. Robbins, which did just that, has had the problematic effect of incentivizing agencies to adopt exceedingly vague and broad regulations that can be construed as necessary, on an ad hoc basis, for a given case. Such rules make it virtually impossible to pin agencies down with the terms of their own regulations, since many of them are unhelpfully vague and may reasonably be read to reflect the agency’s construction in a given case. Under this present framework, no longer do we take seriously the separation of powers that the Constitution mandates; legislative power is fungible and, in an overwhelming proportion of cases, rests with electorally unaccountable bureaucrats.
Consider the example of a Kansan farmer who believes his livelihood will be adversely affected by a certain rule considered by the federal government. Assuming legislative prerogative over the promulgation of such a rule rested with Congress, as it should, he could air his opposition to the bill to his elected representatives, all three of whom are incentivized by the electoral process to listen carefully to the farmer’s set of grievances. On the other hand, no such incentives are in play if legislative prerogative for said rule rests with, say, the Center for Food Safety and Applied Nutrition of the Food and Drug Administration. Such agencies are electorally unaccountable to the farmer and, from a perspective of incentive alignment, are disinclined to care about his perspective on a rule that would affect him. Furthermore, regulatory agencies span vast, often redundant jurisdictions and lie deep in bureaucratic mazes that render the responsible parties completely inaccessible for a regular citizen with no particular expertise in lobbying government officials. Consequently, legislative power has migrated from elected representatives to electorally distant and inaccessible bureaucrats, resulting in a significant dearth of accountability and potential for redress for common citizens.
Now, there are a few arguments against a strict application of the nondelegation doctrine, the strongest of which raises a valid concern of institutional capacity. Advocates of an expansive administrative state typically, and justifiably, view regulatory agencies as performing a crucial quasi-legislative role in lieu of a formal legislative body that lacks any relevant substantive expertise in most areas of law and public policy. Their argument progresses thus: since congressional representatives lack any meaningful knowledge of or expertise in, say, environmental science, the telecommunication industry, consumer protection, or securities trading, they cannot (and ought not) be expected to legislate on such matters whose delicate intricacies they do not and cannot understand. Consequently, the Court in Chevron counseled that the power to best frame such laws was wisely vested in those sufficiently knowledgeable about the complex fields that their laws and regulations affect.
This line of reasoning, while facially valid, collapses the crucial distinction between formation and promulgation of laws, both of which are discrete and mutually exclusive components of a legislative process. Substantive expertise may well be required in the writing and framing of laws, but laws in a republican form of government are only legitimate when promulgated by the express assent of the people’s duly elected representatives. In fact, this is how Congress routinely operates. Its research arm, the Congressional Research Service, housed under the Library of Congress, employs full-time subject-matter experts whose sole responsibility is to, upon request of members of Congress, conduct nonpartisan research and analysis in their areas of expertise and provide reports detailing their findings to members that request them. Lawmakers then use these nonpartisan, expert analyses to draw up bills, debate measures, and promulgate laws that affect their constituents.
The problem with the current regulatory system, however, is not that experts frame the laws — which can be desirable for many reasons — but that such unaccountable experts are also the ones promulgating and enforcing laws with little to no meaningful democratic action on either. That the framing of laws should generally be informed by substantive expertise is undebated and wholly conceded; what is crucial to a republican system, however, is that “expert opinions” not be given the force of law unless they duly clear the constitutionally prescribed legislative process. That is to say, expert opinions must remain opinions unless and until they clear the bar set forth in Article I. This is not too much to ask of a government of the people, by the people, and for the people.
Legislative delegation spawns many related but discrete problems, the most constitutionally momentous of which is perhaps that of subdelegation. This, in essence, can be broadly defined as the process whereby Congress delegates some form of authority to a member of the executive branch — generally a member of the President’s Cabinet. Subdelegation is in most cases no different from delegation, in that it always transfers some form or degree of congressional prerogative to an executive agent; the uniqueness of the problem, however, arises from potential for disagreement between the statutorily endowed executive officer and the chief executive, namely, the President of the United States. In these cases, a unique constitutional question arises: does Congress have the power to delegate or otherwise bestow a certain power on an executive officer, but shield said officer’s power from the President? The answer, simply, is no. Even assuming the validity of congressional delegations of power, shielding an executive officer from the will of the President is an unconstitutional intrusion upon a distinct and discrete constitutional office of equal stature into whose domain Congress simply has no power or prerogative to intrude, except by constitutionally stipulated mechanisms.
Examples of these “constitutionally stipulated mechanisms” include, but are not limited to, the confirmation and impeachment powers. Additionally, when Congress issues a directive or discretionary power to an executive agent, it does not confer on them a new legislative office; instead, it exploits the executive office that the agent already occupies, and so harnesses the powers of another branch to carry out its own bidding. Not only is such action by Congress, as stated above, an unconstitutional incursion into the autonomy of another branch, but, in seeking to pit an agent’s executive prerogative against that of the chief executive, it also gravely misconstrues the nature of federal executive power. Simply stated, no officer of the United States wields any executive power that does not in some form emanate from the President of the United States. Members of the executive branch are only empowered to act in their official capacities by such authority as they exercise by delegation in the name of the chief executive in whose sole person all and every executive power of the United States is constitutionally vested. Much like the ecclesiastical metaphor in John 15:1–8 of the vine and its branches, executive officers that subvert the will of the President act in the name of a power that they do not possess. Every ounce of federal executive power, therefore, resides in the Presidency, and no man, office, or institution may displace it from its absolute and unyielding hold.
The problems of delegation and subdelegation run far deeper than can be justly studied in the present analysis. Yet, even a cursory consideration of the doctrines reveals their underlying infirmities and serves as an essential beacon of a broken constitutional system that has lost its way. Nondelegation, for all its controversy, is an idea of remarkable simplicity. It requires only that we take seriously and guard fiercely the constitutional prescriptions of distinct branches and separated powers so as to secure republican rule and keep tyranny at more than an arm’s length. These founding principles and concerns remain very much, if not more, relevant in our age, and any teachings that run contrary to the fundamental principles long undergirding our institutions must be appraised with the deepest suspicion.
Graphic design by Grace Koh ’20.
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