The other delegate: Judicially administered statutes and the nondelegation doctrine

Southern California Law Review

Volumn 81, Issue 3, 2008, Pages 405-476

  Lemos, Margaret H ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 43949093599     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (426)

1. U.S. CONST. art. I, § 1.
2. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (internal citation and quotation marks omitted).
3. See discussion infra Part III.A.
4. See generally Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721 (2002).
5. See infra notes 62-73 and accompanying text.
6. Notable recent commentary includes Larry Alexander & Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035 (2007);
7. Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U. CHI. L. REV. 1297 (2003);
8. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327 (2002) [hereinafter Lawson, Original Meaning];
9. Gary Lawson, Discretion as Delegation: The "Proper" Understanding of the Nondelegation Doctrine, 73 GEO. WASH. L. REV. 235 (2005);
10. Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097 (2004);
11. Posner & Vermeule, supra note 4; Eric A. Posner & Adrian Vermeule, Nondelegation: A Post-mortem, 70 U. CHI. L. REV. 1331 (2003).
12. Lawson, Original Meaning, supra note 6, at 330.
13. For rare exceptions, see MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 140-41 (1995) (arguing that delegations to courts are unproblematic so long as they authorize courts to make law only in the context of a case or controversy);
14. Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 41 & n.182 (1985) (recognizing that there may be limits on Congress's ability to delegate common lawmaking power to federal courts).
15. Cf. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387 (2003) [hereinafter Manning, Absurdity Doctrine] (invoking nondelegation principles to argue against court practice of interpreting statutes to avoid absurd results);
16. John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673 (1997) [hereinafter Manning, Textualism] (arguing that courts' reliance on legislative history permits Congress to engage in an invalid form of self-delegation).
17. See infra Part III.B. For recent scholarship focused on the fact of delegations to courts, sec Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1035 (2006) [hereinafter Stephenson, Allocation of Delegated Power];
18. Daniel A. Farber, Modeling Coherence, Stability, and Risk Aversion in Legislative Delegation Decisions, 119 HARV. L. REV. F. 157 (2006), http://www.harvardlawreview.org/forum/issues/119/feb06/farber.pdf;
19. Matthew C. Stephenson, The Legislative Choice Between Agencies and Courts: A Response to Farber and Vermeule, 119 HARV. L. REV. F. 173 (2006), http://www.harvardlawreview.org/forum/issues/119/ feb06/stephenson.pdf;
20. Adrian Vermeule, The Delegation Lottery, 119 HARV. L. REV. F. 105 (2006), http://www.harvardlawreview.Org/forum/issues/119/ feb06/vermeule.pdf.
21. That is not to say that delegations to courts have been ignored altogether. Neither commentators nor courts could fail to notice the Rules Enabling Act, for example, which delegated to the Court the power to "prescribe general rules of practice and procedure and rules of evidence" for cases in the federal courts. 28 U.S.C. § 2072(a) (2000). However, courts' authority to make rules for the governance of their own proceedings presents a special, and particularly easy, case for the nondelegation doctrine. See infra notes 32-51 and accompanying text. The more difficult question concerns the constitutional status of statutes that delegate to courts the authority to establish norms that apply outside the context of litigation, governing the primary conduct of private citizens. See Mistretta v. United States, 488 U.S. 361, 396 (1989) (distinguishing between procedural rules and rules that "bind or regulate the primary conduct of the public"). That question has gone largely unnoticed in the vast nondelegation literature, and it is the focus of this Article.
22. Congress delegates power to agencies housed in the executive branch as well as to so-called "independent agencies" that are outside the direct control of the President. See Humphrey's Executor v. United States, 295 U.S. 602 (1935) (holding that Congress may create independent agencies subject only to a limited power of removal by the President). This Article focuses on executive agencies, leaving aside the distinctive issues presented by independent agencies.
23. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
24. U.S. CONST. art. I, § 1.
25. Id. art. II, § 1.
26. Id. art. III, § 1.
27. See THE FEDERALIST No. 47, at 324 (James Madison) (Jacob E. Cooke ed., 1961) ("The accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few, or many, . . . may justly be pronounced the very definition of tyranny."); M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1148 (2000) ("[C]ourts and commentators agree on the following objective: The system of separation of powers is intended to prevent a single governmental institution from possessing and exercising too much power.").
28. For a compelling argument linking structural separation of powers to the protection of individual rights, see Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513 (1991).
29. For an historical account of how American constitutionalists arrived at the separation of powers enshrined in Articles I, II, and III, see Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1755-1810 (1996).
30. See Mistretta v. United States, 488 U.S. 361, 380 (1989) ("[T]he Framers did not require - and indeed rejected - the notion that the three Branches must be entirely separate and distinct."); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."); Flaherty, supra note 16, at 1766-67.
31. U.S. CONST. art. I, § 7.
32. Id. art. II, § 2.
33. See Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253, 1258-72 (1988) (describing the theory of checks and balances).
34. See Magill, supra note 16, at 1149 (describing widespread consensus among courts and commentators that the system of separated powers, with checks and balances, "will facilitate competitive tension among the branches[,] which, in theory, yields an equilibrium among them, preventing one from becoming dominant").
35. THE FEDERALIST No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961).
36. Act of Sept. 29, 1789, ch. 24, § 1, 1 Stat. 95, 95 (1789).
37. Act of July 22, 1790, ch. 33, § 1, 1 Stat. 137, 137 (1790).
38. Act of Sept. 24. 1789, ch. 20, § 17, 1 Stat. 73, 83 (1789).
39. The end of the nineteenth century marked the beginning of the administrative state as we know it today, see. e.g., 1 KENNETH C. DAVIS, ADMINISTRATIVE LAW TREATISE 17-18 (2d ed. 1978);
40. Richard B. Stewart. The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1671 72 (1975), not the beginning of all administrative regulation at the federal level.
41. For discussions of the federal government's early experiences with administrative law, see Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations. 1787-1801, 115 YALE L.J. 1256 (2006);
42. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801 1829, 116 YALE L.J. 1636 (2007).
43. See, e.g.. Harold J. Krent, Delegation and Its Discontents, 94 COLUM. L. REV. 710, 710 (1994) (reviewing DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY (1993)). Fora sense of the scope of modern agency power, see generally the Federal Register, available at http://www.archives.gov/federal-register/ public-inspection (last visited Mar. 18, 2008) (listing notices and proposed rules available for public inspection for seventy different federal agencies, the regulations of which affect activities and issues ranging from commodities trading to family law to nuclear activity).
44. See Mistretta v. United States, 488 U.S. 361, 372 (1989) ("[I]n our increasingly complex society, replete with ever[-]changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.").
45. See, e.g., David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 CARDOZO L. REV. 947, 954 (1999) (noting that "one of the primary reasons for delegating" is "the ability of agencies to respond flexibly to changing conditions");
46. David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 GEO. L.J. 97, 135-36 (2000) (explaining why it is difficult for Congress to legislate with specificity). For a more detailed description of the functional advantages of delegations to agencies, see infra Part IV.B.
47. See, e.g., Merrill, supra note 6, at 2153-54 (discussing the common argument that the scale of modern government makes delegations necessary); Richard J. Pierce, Jr., Political Accountability and Delegated Power: A Response to Professor Lowi, 36 AM. U. L. REV. 391, 404 (1987) ("Given the nature and level of governmental intervention that Congress now authorizes, it could not possibly make the hundreds, or perhaps thousands, of important policy decisions that agencies make annually.").
48. See Posner & Vermeule, supra note 4, at 1723 (describing the "standard view in the literature").
49. Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
50. Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 73, 83 (1789).
51. Act of May 8, 1792, ch. 36, § 2, 1 Stat. 275, 276 (1792).
52. See Wayman, 23 U.S. at 1.
53. See id. at 43.
54. See id. at 42 (acknowledging that the Process Act went beyond "matters of practice"); id. at 44-46 (describing a continuum of issues ranging from pure procedure to more "legislative" matters).
55. Id. at 42.
56. Id.
57. Id. at 46.
58. Id. at 43.
59. Id. at 45.
60. See, e.g., Mistretta v. United States, 488 U.S. 361, 387 (1989) (citing Wayman for the proposition that Congress may delegate to courts "rulemaking power pertaining to the Judicial Branch"); Chandler v. Judicial Council, 398 U.S. 74, 86 n.7 (1970) (recognizing that Congress may delegate to judicial councils authority to "make all necessary orders for the effective and expeditious administration of the business of the courts"); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) (rejecting a constitutional challenge to the Rules Enabling Act on the ground that "Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or Constitution of the United States" (citing Wayman, 23 U.S. at 42)).
61. See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735, 759 n.100 (2001) (noting that the Court has never fully explained why procedural rulemaking powers can be delegated to courts without raising any constitutional questions).
62. Wayman, 23 U.S. at 42.
63. See Pushaw, supra note 44, at 787-92 (summarizing the relevant literature).
64. See, e.g., Abraham Gertner, The Inherent Power of Courts to Make Rules, 10 U. CIN. L. REV. 32, 34-35, 44-48 (1936);
65. Charles W. Joiner & Oscar J. Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 MICH. L. REV. 623, 628-30, 645-48 (1957);
66. Linda S. Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283 (1993);
67. John H. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 ILL. L. REV. 276, 276-79 (1928).
68. Pushaw, supra note 44, at 742. See also, e.g., William F. Ryan, Rush to Judgment: A Constitutional Analysis of Time Limits on Judicial Decisions, 77 B.U. L. REV. 761, 782-98 (1997) (arguing that courts' power trumps Congress's only where Congress has attempted to interfere unduly with courts' inherent power to render decisions in contested cases).
69. See, e.g., JACK B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURES (1977);
70. Charles E. Clark, The Proper Function of the Supreme Court's Federal Rules Committee, 28 A.B.A. J. 521 (1942).
71. The only arguments to the contrary of which I am aware focus on the fact that statutes like the Rules Enabling Act authorize courts to make law outside the confines of a case or controversy. See MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 20-22 (2d ed. 1990);
72. Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1, 13-15 (1926).
73. Even if one rejects the inherent-power view discussed in the text, it is well settled that whatever limitations the Constitution imposes on delegations of the "legislative" power are relaxed when the subject matter of the delegation is within the special competence of the recipient branch. See Posner & Vermeule, supra note 4, at 1731. That principle, often used to justify delegations to the president with respect to foreign affairs, see, e.g., Loving v. United States, 517 U.S. 748 (1996); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), applies comfortably to statutes authorizing courts to create rules governing their own procedures.
74. Lawson, Original Meaning, supra note 6, at 361. Eric Posner and Adrian Vermeule argue that Wayman has nothing to do with the nondelegation doctrine as we know it, but instead rests on a distinction between "exclusive" powers and "powers that Congress may choose either to exercise itself or to delegate to its agents." Posner & Vermeule, supra note 4, at 1378. The latter point might be right, but it does not follow that Wayman is not a nondelegation case. The nondelegation doctrine has always been burdened by an unfortunate formalism, under which the critical question is not whether Congress has delegated away too much "legislative" power, but whether the power Congress has delegated is "legislative" at all. As described in more detail below, see infra notes 60-61 and 148-50 and accompanying text, the modern formulation of the test holds that (1) Congress may not delegate away any legislative power, and (2) Congress has not ceded any legislative power so long as the statute in question contains an intelligible principle to guide and limit agency discretion. That formulation is entirely consistent with Wayman, which suggests that Congress itself must resolve certain "important subjects" - that power is nondelegable or, in Posner and Vermeule's terminology, "exclusive" - but may delegate away responsibility for lesser details. For a similar reading of Wayman, see Lawson, Original Meaning, supra note 6, at 355-61.
75. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
76. Id. at 401.
77. Id. at 409.
78. Panama Refining Co. v. Ryan, 293 U.S. 388, 428 (1935).
79. Id. at 426.
80. The requirement also is thought to facilitate judicial review. See, e.g., Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 486 (1989) (arguing that "the constitutionally relevant inquiry is [not] whether Congress resolved certain types of issues, but whether it supplied enough policy structure that someone can police what its delegee is doing").
81. See John Locke, The Second Treatise of Civil Government, in THE TRADITION OF FREEDOM 201, 244 (Milton Mayer ed., 1957) ("The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.").
82. See also Louis L. Jaffe, An Essay on Delegation of Legislative Power: I, 47 COLUM. L. REV. 359, 359-60 (1947) (identifying a "fundamental democratic concern" that "large decisions of policy should be grounded in consent");
83. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1672 (1975) (describing the link between the nondelegation doctrine and contractarian political theory).
84. J. W. Hampton, Jr. & Co., 276 U.S. at 406.
85. Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the judgment) [hereinafter The Benzene Case].
86. For commentary critical of the doctrine's theoretical underpinnings, see generally Posner & Vermeule, supra note 4. A larger body of scholarship critiques the nondelegation doctrine on functional grounds, arguing that delegations to agencies are a positive development - or at least not something that can be restrained in any principled way. See, e.g., David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 CARDOZO L. REV. 947 (1999); Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J. L. ECON. & ORG. 81 (1985); discussion infra Part IV.B.
87. Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000).
88. Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935). Panama Refining concerned a provision of the Recovery Act authorizing the president to prohibit the interstate transportation of petroleum produced in excess of state allowances. As the Court explained, the relevant provision "d[id] not state whether or in what circumstances or under what conditions" the president was to act. Id. at 415. The statute "established] no criterion to govern the President's course," but rather "g[ave] to the President an unlimited authority to determine the policy and to lay down the prohibition, or not lay it down, as he [saw] fit." Id. Thus, although the Court acknowledged that the Constitution permits Congress to delegate the authority to make "subordinate rules . . . within the framework of the policy which the Legislature has. . . defined," it found that the challenged provision crossed the constitutional line because Congress "ha[d] declared no policy" with respect to the petroleum in question. Id. at 429-30.
89. AX.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Schechter involved another provision of the Recovery Act, this one empowering the president to approve "codes of fair competition" to govern a particular trade or industry. Again the Court found a lack of governing standards, deeming the statutory goals of "fair competition" and "industrial recovery" too vague to set meaningful limits on the president's authority. Id. at 530-42.
90. See id. at 523, 537, 536. See also Panama Refining, 293 U.S. at 406. The Court also emphasized that the provision at issue in Schechter effectively delegated rulemaking power to private parties. Schechter Poultry, 295 U.S. at 537.
91. See Lawson, Original Meaning, supra note 6, at 328-29 ("After 1935, the Court has steadfastly . . . found intelligible principles where less discerning readers find gibberish.").
92. See Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 17 (1982) (contending that the nondelegation doctrine "continues to live a fugitive existence at the edge of constitutional jurisprudence").
93. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 487 (2001) (Thomas, J., concurring); Am. Textile Mfrs. Inst., Inc. v. Donovan (The Cotton Dust Case), 452 U.S. 490, 548 (1984) (Rehnquist, J., dissenting); The Benzene Case, 448 U.S. 607, 672 (1980) (Rehnquist, J., concurring in the judgment); California Bankers Ass'n v. Shultz, 416 U.S. 21, 93 (1974) (Brennan, J., dissenting); McGautha v. California, 402 U.S. 183, 273 (1971) (Brennan, J., concurring); United States v. Robel, 389 U.S. 258, 274-75 (1967) (Brennan, J., concurring in the result); Arizona v. California, 373 U.S. 546, 626 (1963) (Harlan, J., dissenting in part).
94. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) ("In recent years, our application of the nondelegation doctrine principally has been limited to. . . giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional." (citing The Benzene Case, 448 U.S. at 646; Nat'l Cable Television Ass'n v. United States, 415 U.S. 336, 342 (1974))). See also infra Part LV.C (discussing narrow-construction cases).
95. LNS v. Chadha, 462 U.S. 919, 951 (1983).
96. Clinton v. City of New York, 524 U.S. 417, 418 (1998). See Marci A. Hamilton, Representation and Delegation: Back to Basics, 20 CARDOZO L. REV. 807, 819-20 (1999) (characterizing Clinton as resting on "the most important nondelegation principle: The legislature holds primary responsibility to make the national policy choices, and the President may not take on those choices").
97. Chadha, 462 U.S. at 927-28. See Thomas W. Merrill & Kristin E. Hickman, Chevron 's Domain, 89 GEO. L.J. 833, 877 n.230 (2001) (describing Chadha in nondelegation terms).
98. See Whitman, 531 U.S. at 474-75 ("[W]e have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.1 ′(quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting))).
99. See generally, e.g., THEODORE J. LAOWI, wei THE END OF LIBERALISM (1969); REDISH, supra note 8; SCHOENBROD, supra note 27; Aranson et al., supra note 68;
100. Ernest Gellhorn, Returning to First Principles, 36 AM. U. L. REV. 345 (1987); Hamilton, supra note 72;
101. Theodore J. Lowi, The Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 AM. U. L. REV. 295 (1987);
102. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 TUL. L. REV. 265 (2001);
103. David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731 (1999);
104. David Schoenbrod, Separation of Powers and the Powers that Be: The Constitutional Purposes of the Delegation Doctrine, 36 AM. U. L. REV. 355 (1987). Cf. Lawson, Original Meaning, supra note 6 (arguing that the Constitution prohibits broad delegations to agencies, but reserving the question whether the Court should enforce the constitutional prohibition).
105. See Sunstein, supra note 63. Courts apply some of Sunstein's "nondelegation canons," such as the canon of constitutional avoidance, to statutes administered by courts as well as statutes administered by agencies. See id. at 337-38. Sunstein does not attempt to rationalize such application to courts. Indeed, he notes that "[i]t would be necessary to look elsewhere" than the nondelegation doctrine "to justify canons that do not involve an exercise of discretion by administrative agencies." Id. at 340. But if Sunstein is right that some canons serve the goals of the nondelegation doctrine when applied to statutory interpretation by agencies, the same may be true when a court relies on one of those canons to limit its own range of construction. Although a full analysis of Sunstein's arguments is beyond the scope of this Article, the notion that different modes of statutory interpretation may promote (or undermine) the principles underlying the nondelegation doctrine is an important one. Sunstein addresses the issue only with respect to agency-administered statutes. That approach is consistent with nondelegation law's focus on delegations to agencies. As this Article demonstrates, however, similar nondelegation problems can arise with respect to statutes left in the care of the courts. It is worth asking whether such problems can be ameliorated effectively through the use of certain canons of construction.
106. See Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 958 (2007). Stack explains that the Chenery doctrine promotes democratic accountability by ensuring that "accountable agency decision-makers, not merely courts and agency lawyers, have embraced the grounds for the agency's actions, and that the agency decision-makers have exercised their judgment on the issue in the first instance." Id. at 958-59. Given that it operates to compel decisionmaking by the (accountable and expert) agency rather than reviewing courts, the Chenery doctrine cannot easily be applied to judicially-administered statutes.
107. See Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 YALE L.J. 1399 (2000) [hereinafter Bressman, Schechter Poultry at the Millennium].
108. But cf. Lisa Schultz Bressman, Disciplining Delegation After Whitman v. American Trucking Ass'ns, 87 CORNELL L. REV. 452 (2002) (linking agency-generated limiting principles to the requirements of the Administrative Procedure Act rather than the nondelegation doctrine). This Article discusses the discretion-limiting approach, and whether it can sensibly be used to cabin delegations to courts, infra Part IV.C.
109. Just as commentators have argued that nondelegation principles currently are being enforced against agencies under doctrines not commonly understood in nondelegation terms, one might argue that the nondelegation doctrine already is being applied to courts - just not in so many words. The most likely candidate for that job probably is the void-for-vagueness doctrine. See Sunstein, supra note 63, at 320 (describing the void-for-vagueness doctrine as similar to a nondelegation doctrine). The void-for-vagueness doctrine operates to invalidate statutes when "vagueness permeates the text...." City of Chicago v. Morales, 527 U.S. 41, 55 (1999). The doctrine has not been explained in nondelegation terms, but rather based on concerns about notice, arbitrary enforcement, and the chilling of constitutional rights. See, e.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). Nevertheless, it may serve the principles of the nondelegation doctrine by forcing courts to remit to Congress excessively vague statutes rather than attempting to supply meaning to such statutes themselves. Cf. McGautha v. California, 402 U.S. 183, 258 (1971) (Brennan, J., dissenting) ("[T]he doctrine of vagueness is premised upon the fundamental notion that due process requires governments to make explicit their choices among competing social policies .. . ."). Notably, however, the void-for-vagueness doctrine does not apply across the board. It is meaningfully enforced only with respect to criminal statutes and statutes that trench on fundamental constitutional rights. See Village of Hoffman Estates, 455 U.S. at 498 ("The degree of vagueness that the Constitution tolerates - as well as the relative importance of fair notice and fair enforcement-depends in part on the nature of theenactment.");
110. David H. Gans, Strategic Facial Challenges, 85 B.U. L. REV. 1333, 1356-61, 1364-72 (2005) (describing application of the doctrine);
111. Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960) (same). If indeed the doctrine does advance nondelegation norms, its limited scope may merit reconsideration.
112. See generally PETER KARSTEN, HEART VERSUS HEAD: JUDGE-MADE LAW IN NINETEENTH-CENTURY AMERICA (1997).
113. See Grant Gilmore, Legal Realism: Its Cause and Cure, 70 YALE L.J. 1037, 1040 (1961) ("[Throughout the nineteenth century, the courts were left largely to their own devices. Our private law was, overwhelmingly, judge-made law.").
114. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 19 (1842), overruled by Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
115. Id. at 2-3.
116. See Edward A. Purcell, Jr., The Story of Erie: How Litigants, Lawyers, Judges, Politics, and Social Change Reshape the Law, in CIVIL PROCEDURE STORIES 21, 24 (2004) (Kevin M. Clermont ed., 2004).
117. On the expansion of general federal common law, see, for example, JAMES McCLELLAN, JOSEPH STORY AND THE AMERICAN CONSTITUTION: A STUDY IN POLITICAL AND LEGAL THOUGHT 183-84 (1971);
118. Lawrence Lessig, Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory, 110 HARV. L. REV. 1785, 1792-93 (1997).
119. Frederick Schauer, Do Cases Make Bad Law?, 73 U. CHI. L. REV. 883, 885 (2006) ("Common law decisionmaking was widely understood prior to the twentieth century as the process of discovering the rules and principles immanent in the existing law, such discovery being assisted by logical deduction from earlier cases as well as the less deductive but no less constrained application of that mysterious array of skills then and now known as 'legal reasoning.'"). It bears emphasis that the formalist conception of judging was not universally accepted even in the nineteenth century. Indeed, some judges were quite explicit about the role considerations of "justice" and "policy" played in their decisionmaking. See, e.g., Farwell v. Boston & Worcester R.R., 45 Mass. (4 Met.) 49, 57-58 (1849) (Shaw, J.).
120. The "discovery" or "declaratory" theory of adjudication dates back to Blackstone, who saw the law as "something to be ascertained and applied, rather than made." Alfred Hill, The Law-Making Power of the Federal Courts: Constitutional Preemption, 67 COLUM. L. REV. 1024, 1069 (1967) (citing WILLIAM BLACKSTONE, 1 COMMENTARIES *69-70).
121. See also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 4-9 (1977);
122. Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 427-29 (1995);
123. Merrill, supra note 8, at 64. Larry Kramer explains that the early understanding of common law was not quite as simplistic as the discovered or made dichotomy suggests: Common law was not a product of judicial will and imagination, but neither was it a fully determined body of invariant rules, found by the judge in the same way that you or I might find a dictionary definition. It was an evolving set of principles, 'out there' in a sense, but nonetheless shaped by judges called upon to apply the principles to particular circumstances. Larry Kramer, The Lawmaking Power of the Federal Courts, 12 PACE L. REV. 263, 282 (1992).
124. Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 9, 32 (1983) (emphasis in original).
125. Holmes rejected the notion that legal reasoning could be formal and scientific, arguing instead that judges had no choice but to resolve cases by balancing the relevant policy concerns. At least in hard cases, the neutral concepts so revered by formalists were not sufficient to decide the dispute. Rather, judges had no choice but to exercise the "sovereign prerogative of choice," guided by their "views of public policy" and "considerations of social advantage." OLIVER WENDELL HOLMES, Law in Science and Science in Law, in COLLECTED LEGAL PAPERS 210, 239 (1920);
126. OLIVER WENDELL HOLMES, THE COMMON LAW 32 (Mark D. Howe ed., 1963);
127. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 184 (1920). Sociological jurisprudence scholars like Roscoe Pound offered a related critique based on the notion that law should take account of actual facts and strive for practical utility rather than scientific precision.
128. See Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 609, 610 (1908) (calling for "a pragmatic, a sociological legal science" and urging a "march. . . away from the method of deduction from predetermined conceptions").
129. See Karl Llewellyn, Some Realism About Realism - Responding to Dean Pound, 44 HARV. L. REV. 1222, 1252 (1931) ("If deduction does not solve cases, but only shows the effect of a given premise; and if there is available a competing but equally authoritative premise that leads to a different conclusion - then there is a choice in the case; a choice to be justified; a choice which can be justified only as a question of policy . . . .") (emphasis in original).
130. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812 (1935).
131. See Llewellyn, supra note 89, at 1237 (explaining that the realist movement was marked by "[d]istrust of traditional legal rules and concepts insofar as they purport to describe what either courts or people are actually doing," and "distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions") (emphasis in original). For the Realists, "[g]enerally stated rules of law [did] not so much explain as conceal the bases of judicial decision." Gilmore, supra note 81, at 1038. See also Max Radin, The Theory of Judicial Decision: Or How Judges
132. GRANT GILMORE, THE AGES OF AMERICAN LAW 95 (1977) ("Between 1900 and 1950 the greater part of the substantive law, which before 1900 had been left to the judges for decision in the light of common law principles, was recast in statutory form."); Lessig, supra note 86, at 433 ("Images of Lochner notwithstanding, the turn of the century was filled with progressive economic regulation in a wide range of areas. Beginning with the Interstate Commerce Commission's railroad regulation, the federal government grew rapidly in its efforts to professionalize regulation in many areas of American life.").
133. See, e.g., Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, in AMERICAN LEGAL REALISM 228 (William W. Fisher III et al. eds., 1993) (demonstrating that every canon of statutory construction has an equal and opposite countercanon that supports the contrary result);
134. Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 864 (1930) ("[Courts] scarcely conceal from themselves or from their readers that . . . a choice has for one reason or another been made and that sections of the code have then been sought to justify that choice: that an ambiguity has been discovered and an interpretation selected after - rather than before - the effect of such an interpretation on the decision was known.").
135. Lessig, supra note 86, at 430-32. For a discussion of the theoretical underpinnings of Erie and their link to legal realism, see generally Purcell, supra note 84. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Swift v. Tyson, 41 U.S. 1 (1842). Of course, the retreat from Swift cannot be explained solely in terms of formalism versus realism. Erie also rests in large part on notions of positivism. Whereas earlier thinkers had conceived of the common law as something "out there" in the ether, not tethered to the positive law of any particular government, by the time Erie was decided it was widely recognized that "[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified . . . ." S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). See Erie, 304 U.S. at 79 ("[L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State . . . ."). It followed that any common law created by the federal courts must be federal law, and therefore could not extend to subjects (such as insurance) not entrusted by the Constitution to the federal government. See, e.g., Peter L. Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 ALA. L. REV. 891, 911-17 (2001).
136. Erie, 304 U.S. at 79.
137. Id. at 78.
138. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960, at 222-23 (1992).
139. JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 14 (1938).
140. See Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2593-94 (2006) ("There is an evident link between the realists' emphasis on the policy-driven nature of interpretation and the New Deal's enthusiasm for administrators, who were to be both expert and accountable.").
141. LANDIS, supra note 98, at 23-24.
142. Id. at 31.
143. Id.
144. Id. at 6-7. See also Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 206 (2006) (linking the shift from judge-made law to administrative regulation to concerns about democratic accountability).
145. See HORWITZ, supra note 97, at 221 (discussing the "critical view of courts as unfair and inefficient forums"); STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES 1877-1920, at 253 (1982) (discussing how distrust of courts as "archenem[ies] of the forces of populism" drove the decision to create the Interstate Commerce Commission to regulate railroads);
146. David B. Spence, A Public Choice Progressivism, Continued, 87 CORNELL L. REV. 397, 406 (2002) ("[L]egal realists saw agencies as the antidote to courts run amok.");
147. Peter L. Strauss, The Common Law and Statutes, 70 U. COLO. L. REV. 225, 233 (1999) ("In the first part of this century, we went through a period of struggle between the political parts of our government and the courts, in which the courts substantially resisted political changes influencing legislation . . . . This led to the development of alternative institutions for deciding some legal questions, to the creation of a considerable bureaucracy for administration.").
148. Report of the Special Committee on Administrative Law, 59 A.B.A. REP. 539, 549 (1934).
149. See supra notes 63-66 and accompanying text.
150. Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 ADMIN. L.J. 269, 280-81 (1988).
151. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 GEO. L.J. 2225, 2228 (1997) ("[T]he legislative process always leaves some policy disputes unresolved . . . .").
152. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 241.
153. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
154. See id. at 843-44.
155. Id. at 842.
156. Id. at 843.
157. See Merrill & Hickman, supra note 73, at 880-81 ("The central insight of Chevron is that any question of statutory interpretation where the answer is not compelled by traditional tools of interpretation entails the exercise of discretionary policy."); Pierce, supra note 108, at 2228 ("The [Chevron] Court recognized that any time Congress enacts a statute that does not resolve an interpretive question that arises in the process of administering the statute, Congress has created the need for some other institution to resolve a policy dispute."); Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2087 (1990) ("Chevron reflects . . . a distinctive theory of interpretation. In the last generation it has frequently been suggested that the process of interpretation is often not merely a mechanical reconstruction of legislative desires. Instead that process sometimes calls for an inquiry into questions of both policy and principle.").
158. Chevron, 467 U.S. at 843 (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).
159. Id. at 865. If the reasoning of Chevron sounds familiar, it should. The notion that statutory interpretation inevitably requires policy judgment was a key prong of the realist critique of legal formalism. For that reason, Cass Sunstein has equated Chevron with Erie - "as a suggestion that law and interpretation often involve no 'brooding omnipresence in the sky' but instead discretionary judgments to be made by appropriate institutions." Sunstein, supra note 103, at 206 (quoting S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting)).
160. 15 U.S.C. § 1 (2000).
161. See United States v. Se. Underwriters Ass'n, 322 U.S. 533, 553 (1944) ("Language more comprehensive [than that used in the Act] is difficult to conceive [of]."); Spence & Cross, supra note 29, at 139 (describing the standard set out in Section 1 of the Sherman Act as "about as nonspecific as that found in any regulatory statute").
162. Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 688 (1978).
163. Chevron, 467 U.S. at 844.
164. Id. at 843-44.
165. Frank H. Easterbrook, Judicial Discretion in Statutory Interpretation, 57 OKLA. L. REV. 1, 3 (2004) ("If the statute is addressed to an agency, then the agency has discretion; if the statute is addressed to a judge, then the judge has discretion."). For examples of other broadly worded statutes administered by courts, see Securities Act of 1934, 15 U.S.C. § 78j(b) (2000) (prohibiting the use of "any manipulative or deceptive device or contrivance" in connection with the purchase or sale of securities); Copyright Act, 17 U.S.C. § 107 (2000) (stating that "the fair use of a copyrighted work" does not constitute copyright infringement); 20 U.S.C. §§ 1400(d), 1403(a) (2000) (creating a federal right of action to enforce handicapped children's right to "free appropriate public education"); Voting Rights Act, 42 U.S.C. § 1973(a) (2000) (prohibiting any "voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color"); id. § 1988(b) (authorizing courts to award "a reasonable attorney's fee" to the prevailing party in civil rights cases); Title VII, id. § 2000e-2(a) (creating a federal cause of action to remedy "discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment because of race, gender, religion, or national origin); Federal Employers' Liability Act, 45 U.S.C. § 51 (2000) (creating a federal tort remedy for railroad workers injured by their employers' "negligence"); Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 451 (1957) (interpreting § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), which grants federal courts jurisdiction over contract disputes between employers and unions, as authorizing courts to develop a substantive law regarding enforcement of collective bargaining agreements); Kirschbaum v. Walling, 316 U.S. 517, 523 (1942) ("[T]he Fair Labor Standards Act[, 29 U.S.C. § 201-19 (2000),] puts upon the courts the independent responsibility of applying ad hoc the general terms of the statute to an infinite variety of complicated industrial situations."). See also Krent, supra note 27, at 741 n.132 (describing the oral argument before the D.C. Circuit at which Judge Silberman asked whether the Freedom of Information Act, which directs the government to exempt from disclosure "investigatory records compiled for law enforcement purposes,. . . but only to the extent that the production of such records . . . would . . . constitute an unwarranted invasion of personal privacy," 5 U.S.C. § 552b(c)(7) (2000), violates the nondelegation doctrine by ceding too much discretion to courts).
166. Harry T. Edwards, The Role of a Judge in Modern Society: Some Reflections on Current Practice in Federal Appellate Adjudication, 32 CLEV. ST. L. REV. 385, 424-25 (1983-84).
167. See also William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1392 (1988) ("[A]ren't most statutes common law statutes, to the extent that they have gaps and ambiguities which Congress fully expects the judiciary to fill?").
168. Sunstein, supra note 99, at 2599.
169. See id. But cf. infra Part IV.B.2 (discussing mechanisms by which Congress and the president can rein in agency discretion).
170. In an empirical study of courts' application of the Chevron doctrine, Thomas Miles and Cass Sunstein found that judges' and Justices' "political convictions" exerted a "strong influence" on their analysis of agencies' interpretations of statutory law. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 826 (2006). To the extent that is so, it strains reason to suggest that judges will be blind to political and policy concerns when interpreting statutes over which they have been delegated primary authority.
171. See Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 HARV. L. REV. 1417, 1420 (1987) (The will of the national legislature is too often expressed in "commands that are unclear, imprecise, or gap-ridden; in too many cases, . . . '[t]he effort to determine congressional intent. . . might better be entrusted to a detective than to a judge.'" (quoting Harrison v. PPG Indus., 446 U.S. 578, 595 (1980) (Rehnquist, J., dissenting))).
172. Edwards, supra note 123, at 425.
173. See supra note 119 and accompanying text. The Copyright Act is a similar example. The legislative history of the Copyright Act makes it clear that Congress consciously left some issues - most notably the question of "fair use," see 17 U.S.C. § 107 (2000), to the courts. See WILLIAM F. PATRY, THE FAIR USE PRIVILEGE IN COPYRIGHT LAW 261-365 (2d ed. 1995) (describing the legislative history of the "fair use" privilege under the Copyright Act).
174. Cf. Henry J. Friendly, The Gap in Lawmaking-Judges Who Can't and Legislators Who Won't, 63 COLUM. L. REV. 787, 793 (1963) ("Anyone who has had to deal with the Copyright Act of 1909 must stand in awe at the ability of the framers to toss off a sentence that can have any number of meanings.").
175. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007).
176. Id. at 2725.
177. Id. at 2724.
178. Id. at 2710.
179. Id. at 2712 (quoting Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006)).
180. See, e.g., id. at 2715 (noting that "[m]inimum resale price maintenance can stimulate interbrand competition . . . by reducing intrabrand competition"); id. at 2715-16 (explaining that minimum price agreements can help prevent free-riding); id. at 2716 (emphasizing that resale price maintenance can facilitate new entry and that "[n]ew products and new brands are essential to a dynamic economy").
181. Id. at 2725-26 (Breyer, J., dissenting).
182. See id. at 2731 ("I can find no change in circumstances in the past several decades that helps the majority's position.").
183. Indeed, all the Justices may well have agreed on the relevant economic theory. See id. at 2728-29 (acknowledging arguments in favor of vertical price controls). What divided the Justices was not the economic theory itself, but the question whether such theory justified overruling longstanding precedent.
184. Easterbrook, supra note 122, at 6.
185. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984). See id. at 431 (acknowledging that "Congress ha[d] not plainly marked [the Court's] course" in the Copyright Act); id. at 442-56 (emphasizing functional considerations such as the likelihood that substantial numbers of copyright holders would not object to having their works recorded by private viewers, and that time-shifting is unlikely to cause substantial harm to the relevant markets). As William Eskridge has documented, "dozens of bills were introduced [in Congress] in anticipation of and in response to [Sony],. . . but the motion picture industry and other groups were able to head off override bills." William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 366 n.102 (1991).
186. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). See id. at 737 (describing the body of law governing private actions under Section 10(b) of the Securities and Exchange Act, 15 U.S.C. § 78j(b), and Securities and Exchange Commission ("SEC") Rule 10b-5 as "a judicial oak which has grown from little more than a legislative acorn"); id. (acknowledging the impossibility of "divin[ing] . . . the express 'intent of Congress' as to the contours of a private cause of action under [SEC] Rule 10b-5" and explaining that "[i]t is therefore proper that we consider. . . what may be described as policy considerations"); id. at 739 (noting policy arguments against the rule in question, but stating that "we are of the opinion that there are countervailing advantages to the . . . rule, purely as a matter of policy").
187. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979). Cf. Landgraf v. USI Film Prods., 511 U.S. 244, 250-51 (1994) (discussing Congress's response to several other controversial Title VII decisions). Title VII prohibits "discriminat[ion]" on the basis of race, but is silent on the question of affirmative action. See 42 U.S.C. § 2000e-2 (2000); Krent, supra note 27, at 729. Justice Rehnquist argued in his dissent in Weber that the Court's decision was inconsistent with the intent of the enacting Congress. Weber, 443 U.S. at 226-30 (Rehnquist, J., dissenting). See also id. at 213 (Blackmun, J., concurring) (conceding Rehnquist's point). Most commentators agree that Justice Rehnquist was correct about legislative intent. See, e.g., Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 GEO. L.J. 281, 303 (1989);
188. Bernard D. Meltzer, The Weber Case: The Judicial Abrogation of the Antidiscrimination Standard in Employment, 47 U. CHI. L. REV. 423, 445 (1980). Others contend that Congress simply never focused on the issue of affirmative action.
189. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1490-91 (1987);
190. Burt Neuborne, Observations on Weber, 54 N.Y.U. L. REV. 546, 553-54 (1979).
191. Till v. SCS Credit Corp., 541 U.S. 465 (2004). See id. at 473-74 (explaining that the Bankruptcy Code "provides little guidance" on the question). The Justices in Till could not agree on which of the four possible interest rate formulas made the most sense in practice and in light of the goals of the Bankruptcy Code; accordingly, the Court split 4-1-4, with no majority opinion. Id. at 480, 491, 492.
192. Nor is the claim that "what courts, the archetypal interpreters, do when they construe a law is really no different than what legislatures, the archetypal lawmakers, do when they create a law . . . ." Farina, supra note 58, at 477. The argument, rather, is that to the extent one believes that agencies enjoy some measure of lawmaking discretion when they implement broad statutory schemes, it becomes difficult to insist that matters are meaningfully different when Congress delegates to courts instead. That is not to say that courts always make law (rather than interpret it) in statutory cases. The point is merely that courts, like agencies, sometimes do make law. Plainly, the ratio of lawmaking to law interpretation increases with the breadth and ambiguity of the statutory scheme in question.
193. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001) ("'[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action.'" (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting))); Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 ADMIN. L.J. AM. U. 187, 190 (1992) (acknowledging that, "under almost any theory of statutory interpretation," interpretation and lawmaking "overlap"); Sunstein, supra note 63, at 330 ("[W]hen statutory terms are ambiguous, there is no escaping delegation. . . . The recipient of the delegation will be either agencies or courts.").
194. See, e.g., Kramer, supra note 86, at 269 (arguing that "courts must make a certain amount of common law simply because there is no clear line between 'making' and 'applying' law," and that "[t]he power to clarify legislation through interstitial lawmaking is . . . an implicit but important part of the judicial function"); Krent, supra note 27, at 742 ("Given the inevitable rule-making of courts hearing cases and controversies, agencies resolving disputes, and the President enforcing the laws, . . . some rule-making of private conduct outside Congress seems unavoidable.").
195. See Spence & Cross, supra note 29, at 138 (arguing that a Congress barred from delegating to agencies would be more likely to rely on courts to specify broadly worded statutes than it would be to enact highly specified statutes itself).
196. See supra notes 55-61 and accompanying text. Eric Posner and Adrian Vermeule argue that the nondelegation doctrine is simply wrong to hold that Congress can violate the separation of powers by delegating too much lawmaking discretion to a coordinate branch. See generally Posner & Vermeule, supra note 4. Posner and Vermeule maintain that Congress impermissibly delegates away its "legislative" power only if it or any of its members delegates to someone else "the authority to vote on federal statutes or to exercise other de jure powers of federal legislators." Id. at 1723. Although Posner and Vermeule are not clear on this point, their argument may turn not only on their understanding of the "legislative" power, but also the "executive" power. For example, they defend their view that the president does not exercise legislative power when enacting rules pursuant to a delegation from Congress on the ground that "the authority that the president exercises . . . is executive authority in the core sense. The president is simply executing the statute according to its terms, and in obedience to the constitutional obligation to 'take Care that the laws be faithfully executed.'" Id. at 1725 (internal citation omitted). If that reading is correct, then it suggests that there may be limits on Congress's ability to delegate lawmaking responsibilities to courts even if no such limits apply to delegations to executive agencies.
197. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). Commentators disagree on exactly where to draw the constitutional line. David Schoenbrod, for example, has argued that the intelligible principle requirement is inadequate, and that Congress should be required to enact "rules" statutes rather than "goals" statutes, SCHOENBROD, supra note 27, at 181-85, and Martin Redish has argued that statutes must contain a "recognizable normative commitment." REDISH, supra note 8, at 154-57. For purposes of this Article, it is not necessary to specify the precise limits on Congress's ability to delegate lawmaking authority to agencies. The important point is that there are limits.
198. See Posner & Vermeule, supra note 4, at 1731 ("[I]f Congress has illicitly given away legislative power, why should it matter who the recipient is?"). Building on their recognition that what is true of delegations to agencies should also be true of delegations to courts, Posner and Vermeule argue that the Court's failure to enforce the intelligible principle requirement against delegations to courts is "a grievous puzzle" for the conventional view. Id. Thus, Posner and Vermeule accept one aspect of the Court's nondelegation doctrine as a given - its failure to account for delegations to courts - and use it to call into question the rest of what the Court has said and done. Id. at 1731-32. They do not explain why they rule out the possibility that the widespread inattention to delegations to courts is itself a mistake.
199. Of course, Congress might violate other aspects of the separation of powers by giving tasks to the judiciary that do not fit within the scope of the "judicial power." Such would be the case, presumably, if Congress enacted a statute instructing the federal judiciary to promulgate legislative-type rules prohibiting racial discrimination in the workplace. Even if the statute contained an intelligible principle, it might well violate the separation of powers by requiring courts to act in the absence of a case or controversy. Cf. Mistretta v. United States, 488 U.S. 361, 393-94 & n.20 (1989) (rejecting a challenge to the Sentencing Commission, an independent agency housed in the judicial branch and staffed, in part, by judges, but suggesting that the question would be closer if Congress had delegated the authority to enact sentencing guidelines to courts); Morrison v. Olson, 487 U.S. 654, 677 (1988) (noting that "'executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution'" (quoting Buckley v. Valeo, 424 U.S. 1, 123 (1976))); Martin H. Redish & Uma M. Amuluru, The Supreme Court, the Rules Enabling Act, and the Politicization of the Federal Rules: Constitutional and Statutory Interpretations, 90 MINN. L. REV. 1303, 1324 (2006) (arguing that the Rules Enabling Act, which authorizes the Court to promulgate legislative-type rules of procedure, "is simply a blatant circumvention of the case-or-controversy requirement").
200. See infra Part IV.B.
201. See, e.g., Krent, supra note 27, at 740-41 ("[T]here is no historical support for applying the nondelegation test to delegation to courts. There has never been any judicial determination, even during the New Deal, explicitly restricting delegation to courts . . . ."); Posner & Vermeule, supra note 4, at 1730-31 ("Analogous delegation problems arise under Article III, but the Supreme Court case law conspicuously lacks any suggestion that the delegation metaphor or the concomitant intelligible principle test constrains congressional delegations to the judges rather than the executive.").
202. Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
203. Id. at 42-43. See also Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 464-65 (1957) (Frankfurter, J., dissenting) (suggesting that the Court's interpretation of § 301 of the Labor Management Relations Act as delegating substantive lawmaking powers to the federal judiciary rendered the Act unconstitutional). It is true that the Court in Wayman did not strike down the statute in question, nor has it ever invalidated, on nondelegation grounds, a judicially administered statute. But given that only one statute - the National Industrial Recovery Act - has ever been declared unconstitutional as an excessive delegation, see supra notes 64-67 and accompanying text, the sample size seems entirely too small to support any broad claims about the constitutional status of delegations to courts.
204. See Herz, supra note 145, at 191 (describing legislative rules).
205. See Administrative Procedure Act, 5 U.S.C. § 553 (2000) (detailing the procedural requirements for formal agency rulemaking).
206. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 576 (1984) ("Validly adopted legislative rules are identical to statutes in their impact on all relevant legal actors . . . .").
207. Herz, supra note 145, at 200. Not all agency rules take this form. The Administrative Procedure Act defines "rule" to include norms of both general and particular applicability. § 551(4). Moreover, agency rules may be "interpretive" rather than "legislative" - that is, they may purport to describe the requirements of the relevant statute rather than create new law. See Herz, supra note 145, at 190-93.
208. Cf. Herz, supra note 145, at 190-93 (discussing the difference between legislative and interpretive rules).
209. See Pierce, supra note 30, at 401. Cf. INS v. Aguirre-Aguirre, 526 U.S. 415, 415-16 (1999) (holding that Chevron deference applies to agencies' statutory interpretations developed through case-by-case adjudication).
210. See Stack, supra note 77, at 1000-01. Although I am not aware of any argument in the nondelegation literature that statutes administered through agency adjudication should be exempt from the nondelegation doctrine, several commentators have argued that agency rules adopted through litigation should receive less deference. These commentators have criticized agencies' resort to adjudications rather than rulemaking precisely because the former do create law, albeit via procedures less suited to law development than notice-and-comment rulemaking. See, e.g., RICHARD J. PIERCE, JR., SIDNEY A. SHAPIRO & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS 286-87 (4th ed. 2004) (arguing that adjudication is an inefficient way to develop broad rules and that the rules that emerge frequently are unclear);
211. Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 VA. L. REV. 253, 254-55 (1986) (describing how rulemaking is better suited than adjudication to produce rational policies);
212. Cornelius J. Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 YALE L.J. 729, 757 (1961) (criticizing adjudication as a mechanism for policy development); discussion infra note 225. That critique is particularly common with respect to the National Labor Relations Board, which proceeds exclusively through adjudication.
213. See, e.g., Merton C. Bernstein, The NLRB's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 YALE L.J. 571, 578 (1970);
214. Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 ADMIN. L. REV. 163, 173 (1985).
215. See, e.g., Daniel A. Farber, The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited, 1982 U. ILL. L. REV. 387, 408-11 (noting that legal actors routinely "speak of cases as embodying rules of law," and that the Erie doctrine rests on the view that judicial decisions can create "law"); Schauer, supra note 85, at 886-87 ("It is . . . no longer especially controversial to insist that common law judges make law . . . . So too when the venue for lawmaking is . . . the judicial construction of doctrine against the background of a largely indeterminate authorizing statute.").
216. Cf. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CARDOZO L. REV. 43, 44, 69 (1993) (arguing that judicial opinions "are simply legal essays that provide information useful in predicting what judgments courts will enter in future controversies," but acknowledging that opinions nevertheless stand as a form of "law").
217. It is true that an individual who defies an interpretation reflected in a judicial decision in a case to which that individual is not a party will be free in any subsequent action to argue that the interpretation is incorrect or should be abandoned for policy reasons. See Merrill, supra note 163, at 66. The fact that litigants can argue for changes or exceptions to judge-made law, however, does not categorically exclude such law from the concerns of the nondelegation doctrine - though perhaps it provides a reason to think differently about delegations to courts.
218. See Eskridge, supra note 123, at 1367 ("Once a statute is authoritatively interpreted by the Supreme Court, . . . private parties will arrange their conduct to take account of the Court's interpretation - that is what makes the Court's interpretation effectively 'legislative.'"). That is so, most obviously, when the Court announces bright-line rules, such as rules that make certain conduct per se illegal under the antitrust laws. See, e.g., Texaco, Inc. v. Dagher, 547 U.S. 1, 5 (2006) (invalidating horizontal agreements among competitors to fix prices); Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49-50 (1990) (per curiam) (invalidating horizontal agreements to divide markets). But "whether what a court offers is a rule or a standard, the court's announcement still serves as the presumptively governing norm for future cases." Schauer, supra note 85, at 888-89. Cf. Strauss, supra note 104, at 234-35 (distinguishing our legal system from that in civil law countries on the ground that American judges' interpretations of statutes stand as law until overruled or overridden by new legislation); id. at 244 ("Once interpretations acquire the force of precedent, the statute changes with the act of interpretation. It can be revised only by a fresh legislative act, which is not easy to come by, or by a judicial overruling . . . .").
219. See Posner & Vermeule, supra note 4, at 1733-34 (discussing the absence of helpful evidence of original intent with respect to delegations in the Federalist and ratifications debates); Kramer, supra note 86, at 275 ("[T]he claim that federal courts have no independent lawmaking authority cannot be settled by reference to the text of the Constitution - not because texts are always indeterminate or anything quite so post-modern, but because on this particular question the Constitution really is ambiguous.").
220. See supra notes 85-87 and accompanying text.
221. See Kramer, supra note 86, at 281-84 (arguing that differences between the common law of today, and how we understand it, and the common law of 1789, "shift[] our understanding in a way that renders questions of original intent unhelpful"). Cf. Merrill, supra note 8, at 13 n.53 (acknowledging the possibility that "[t]he framers may have understood the 'judicial power' to include the power, to be exercised concurrently with the state courts, to explicate rules of decision in the common law tradition," but concluding that any suggestion that federal courts had power to make federal common law binding on the states "would be inconsistent with the framers' commitment to separation of powers and the delegation of the federal lawmaking function to Congress").
222. REDISH, supra note 8, at 140-41.
223. Id. at 140.
224. Id. at 140-41. Martha Field has hinted at a similar argument. See Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 937-38 (1986) ("As long as Congress does not ask courts to do things that are 'not judicial,' which is clearly not the case with making common law generally, the objection to . . . explicit delegation is difficult to accept."),
225. Cf. Frank E. Horack, Jr., Congressional Silence: A Tool of Judicial Supremacy, 25 TEX. L. REV. 247, 250-51 (1947) (contending that judicial interpretations of ambiguous statutes constitute a form of "legislative" activity, but one that may be justified as an "inescapable product of the judicial process").
226. REDISH, supra note 8, at 141.
227. See supra notes 117-20, 130-40 and accompanying text.
228. Sherman Act, 15 U.S.C. § 1 (2000).
229. Id. § 15(a).
230. See, e.g., Paul Gewirtz, The Courts, Congress, and Executive Policy-Making: Notes on Three Doctrines, 40 LAW & CONTEMP. PROBS. 46, 47 (1976) (acknowledging that both the executive and the judiciary "have legitimate policy-making functions");
231. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1239 (1994) ("A governmental function is not legislative . . . merely because it involves some element of
232. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001) (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).
233. See Gewirtz, supra note 176, at 62 (acknowledging that "the line between fundamental policy-making (which is for Congress), and minor or interstitial policy-making (which may be left to the executive and agencies) is a somewhat blurry and subjective one," but questioning whether it is "significantly more so than the lines that courts often draw and work around").
234. See Pierce, supra note 30, at 394.
235. Id. at 394-95.
236. See id. at 404; Spence & Cross, supra note 29, at 135-36.
237. See Easterbrook, supra note 122, at 7.
238. See, e.g., JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 148-56 (1997); Mashaw, supra note 62, at 82; Spence & Cross, supra note 29, at 101-02; Spence, supra note 104, at 398; sources cited infra note 185.
239. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
240. See, e.g., Easterbrook, supra note 122, at 7-9; Kmiec, supra note 107, at 281-82; Merrill & Hickman, supra note 73, at 861-62; Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. REV. 1239, 1251 (1989); Sunstein, supra note 99, at 2587-88.
241. Cf. Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 VA. L. REV. 93, 126-43 (2005) (using similar functional arguments as reasons why agencies and not courts should have responsibility for determining whether to imply private rights of action from ambiguous statutory language).
242. See, e.g., Spence & Cross, supra note 29, at 109 ("[B]ecause elected politicians are generalists within the field of policymaking, they are in turn less informed/more ignorant than administrative agencies about policy matters within the agencies' jurisdiction. Not only do agency bureaucrats have more time to devote to specific policy matters, they often bring more specialized expertise to the problem as well.").
243. See Chevron, 467 U.S. at 865 ("Judges are not experts in the field . . . ."); Sunstein, supra note 99, at 2583 ("For the resolution of ambiguities in statutory law, technical expertise . . . [is] highly relevant, and . . . the executive has significant advantages over courts.").
244. See infra note 320 and accompanying text.
245. See Spence & Cross, supra note 29, at 140 ("Judges do not possess the technical expertise that justify agency delegations, and courts are the poorest of all government institutions when it comes to independent information-gathering capabilities.").
246. See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 147-48 (1993) ("[T]he focus on the litigated case makes it hard for judges to understand the complex, often unpredictable effects of legal intervention. Knowledge of these effects is crucial but sometimes inaccessible.");
247. Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1126 (1987) (comparing the "sporadic and case-specific character of judicial encounters with issues of statutory meaning" with "an agency's continuing responsibilities and policy-implementing perspectives").
248. See Merrill & Hickman, supra note 73, at 861 ("[F]ederal statutory programs have become so complex that it is beyond the capacity of most federal judges to understand the full ramifications of the narrowly framed interpretational questions that come before them."); Sunstein, supra note 114, at 2088 ("Often the regulatory process is confounded by the difficulty of coordinating numerous statutes with one another. . . . If the problems are treated separately, they will not be treated well.").
249. See Easterbrook, supra note 122, at 12 (noting that judicial decisionmaking may be skewed because courts often have to address issues one at a time and typically cannot control the order in which they consider issues).
250. See Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219, 1258-71 (1994) (discussing public choice literature on the problem of cycling and linking that literature to decisionmaking in appellate courts, including the Supreme Court);
251. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1319-50 (1995) [hereinafter Stearns, Justiciability] (same).
252. David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 HARV. L. REV. 921, 940 (1965) (noting that the context of adjudication may "improperly color[] the larger issue [presented] and thwart[] fully informed and objective consideration").
253. Schauer, supra note 85, at 900. There is reason for concern, moreover, that the cases that present themselves to courts - especially appellate courts - will be unrepresentative of the many factual situations to which the rule in question may apply. As Frederick Schauer has put it, "If we want to know the full reach and import of a particular speed limit, we do not want to rely solely on instances in which drivers caught speeding challenge their citations . . . ." Id. at 916. See also Bernstein, supra note 162, at 577 (criticizing the NLRB's commitment to adjudication rather than rulemaking on the ground that "[s]eeing only diseased conditions . . . is a dubious way of becoming acquainted with healthy labor relationships"); Strauss, supra note 190, at 1127 (noting the "often distorting character of the litigation perspective").
254. See Margaret H. Lemos, The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?, 84 TEX. L. REV. 1203, 1252-53 (2006) (explaining how the litigation perspective hampers courts' capacity for dealing with complex issues).
255. See Archibald Cox, The Role of Congress in Constitutional Determinations, 40 U. CIN. L. REV. 199, 209 (1971) ("A court may hear expert witnesses, but they are seldom more than special pleaders. The customary reliance is upon the lawyer's brief. . . . [B]ut even in skilled hands, it hardly equips a court to decide which side is right about a highly controversial social or economic question - assuming that 'lightness' can be proved.");
256. Kenneth L. Karst, Legislative Facts in Constitutional Litigation, 1960 SUP. CT. REV. 75, 105 (questioning whether judges are capable of reaching wise decisions when parties' experts offer conflicting opinions).
257. See, e.g., Cox, supra note 197, at 209 ("Courts have always found it hard to develop the background facts in constitutional cases. Judicial notice often means only intuition or prejudice."); David L. Faigman, "Normative Constitutional Fact-finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 577-93 (1991) (critiquing cases in which the Court has misconstrued, misapplied, or ignored relevant scientific and empirical data);
258. Arthur Selwyn Miller & Jerome A. Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 VA. L. REV. 1187, 1211-18 (1975) (discussing problems that arise when the Court relies on data that has not been subjected to adversarial testing);
259. Daniel J. Solove, The Darkest Domain: Deference, Judicial Review, and the Bill of Rights, 84 IOWA L. REV. 941, 1006 (1999) ("The review of facts is time-consuming. Unlike legislatures and agencies, judges do not have years to amass the huge factual records.").
260. Of course, uniformity may be more important in some areas (such as tax, perhaps) than others. Cf. Strauss, supra note 190, at 1124 (suggesting that the "congressional choice to leave working out the solution to the geographically dispersed courts rather than to a national agency can be seen in some respects as a legislative statement about the relative importance of uniformity").
261. See Strauss, supra note 190, at 1098-99. See also Easterbrook, supra note 122, at 7.
262. Indeed, the law may remain muddled even after the Court intervenes. See, e.g., Jonathan Lechter, Daniel Posner & George Morris, Antitrust Violations, 39 AM. CRIM. L. REV. 225, 235-37 (2002) (explaining that the Court's decision in McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232 (1980), which interpreted the Sherman Act's jurisdictional requirement of an effect on interstate commerce, created a circuit split that the Court failed to resolve in its subsequent decision in Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991)).
263. See Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 978-79 (1992) ("[A]gency decisionmaking is always more democratic than judicial decisionmaking because all agencies are accountable (to some degree) to the President, and the President is elected by the people."); Merrill & Hickman, supra note 73, at 861 (noting that "agencies are more politically accountable than are courts"). But see Hamilton, supra note 72, at 818 ("Bureaucrats are accountable to the people neither through the voting booth nor the reporting requirements under which the President and the Congress labor."). Michael Herz has noted that "[e]mphasis on accountability as a characteristic of administrative agencies is a relatively recent phenomenon." Herz, supra note 145, at 189 n.13 (emphasis in original). Indeed, one of the most common critiques of agency lawmaking is that agencies are not accountable to the public in any meaningful way. Id.
264. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984). Jerry Mashaw has offered a stronger form of this argument, based on his view that the president is more responsive to public preferences than Congress because there is "no particular constituency to which he or she has special responsibility to deliver benefits." MASHAW, supra note 183, at 152. Thus, Mashaw argues that "the delegation of political authority to administrators [may be seen] as a device for improving the responsiveness of government to the desires of the general electorate." Id.
265. The president's ability to control so-called independent agencies, with respect to which the president enjoys only limited removal power, is less certain. See Pierce, supra note 30, at 412-13.
266. Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1263 (2006).
267. See Exec. Order No. 12,866, 3 C.F.R. 638, 641 (1993), reprinted in 5 U.S.C. § 601 (2000). President George W. Bush decided to operate under this order adopted by President Clinton. Bagley & Revesz, supra note 205, at 1267.
268. Exec. Order No. 12,291 § 3, 3 C.F.R. 127, 128-31 (1981), reprinted in 5 U.S.C. § 601 (1988), revoked by Exec. Order No. 12,866, 3 C.F.R. 638 (1993), reprinted in 5 U.S.C. § 601 (2000). See also Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 3 (1995).
269. Exec. Order No. 12,498 § 1(d), 3 C.F.R. 323, 323 (1985), reprinted in 5 U.S.C. § 601 (1988), revoked by Exec. Order No. 12,866, 3 C.F.R. 638, 641 (1993), reprinted in 5 U.S.C. § 601 (2000). For a discussion of Executive Order 12,498 and its effects, see Pildes & Sunstein, supra note 207, at 3-7.
270. Bagley & Revesz, supra note 205, at 1267. See also Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2281-309 (2001) (describing how President Clinton used administrative oversight to promote desired policy ends); Pierce, supra note 30, at 407-08 (noting that "the President has begun to exercise explicit control over agency policymaking"). Not everyone agrees that control by the president is a good thing. One of the most prominent arguments in favor of some enforcement of nondelegation limits is that, compared to Congress, the president can act too quickly, too easily. See Farina, supra note 58, at 516-26; Gewirtz, supra note 176, at 49 ("[L]eft on his own, the President can do dangerous things.").
271. For an empirical study of the ways agencies experience presidential control, see generally Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47 (2006).
272. Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775, 785 (1999) ("The appropriations process sharply constrains the authority and discretion of agencies."). But cf. Farina, supra note 58, at 508 (noting that "while the appropriations power is sometimes used to modify agency behavior, congressional control of regulatory policy through the budget tends to be sporadic and very particularized . . . .").
273. See Schuck, supra note 210, at 785 ("While the nature, quality, and intensity of legislative oversight vary from committee to committee, it is often used to signal congressional preferences on agency policy issues and to extract policy commitments from agency officials.").
274. See Farina, supra note 58, at 509-10.
275. See Manning, supra note 109, at 258-59 ("Congress has in its arsenal many ways of influencing the manner in which agencies perform their functions but relatively fewer methods of influencing the federal judiciary in its disposition of particular cases or controversies."); Spence & Cross, supra note 29, at 140 ("The courts lack democratic accountability and are far more difficult for Congress and the President to check and correct than are agencies."). Cf. Kmiec, supra note 107, at 281-82 (arguing that Congress has various mechanisms for overseeing the work of agencies but does not regularly engage in oversight of courts); Peter H. Schuck, Miss Torts: An Institutional Evolutionist Perspective, 80 CORNELL L. REV. 941, 973 (1995) ("[I]f political accountability for policymaking is desirable, adjudication may represent a poor vehicle for accomplishing it. The judiciary . . . is relatively insulated from the kind of refined public opinion to which legislators and agency policymakers are subject. Moreover, the narrow focus of adjudication tends to diminish the likelihood of political mobilization in response to imprudent or unjust policy decisions.").
276. U.S. CONST. art. III, § 1.
277. But see Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 313-16 (2005) (discussing various tools that Congress and the president can use to try to influence judicial decisionmaking).
278. They cannot, for example, contact judges, urge them to change their views, or threaten their jobs. See Manning, supra note 109, at 259 n.175 ("Congress has relatively ineffective tools at its disposal to discipline judges who do not construe statutes to the liking of its members."). Of course, if Congress disagrees with a court's interpretation of a statute, it can amend the statute to override the judicial reading. The same is true of disfavored agency interpretations. But legislative override is difficult. See infra notes 265-69 and accompanying text. It is certainly more difficult than the mechanisms for control of agencies. See Easterbrook, supra note 122, at 8 (explaining that if an agency head "strays from his master's wishes, he can be reeled in (or replaced) at low cost. But if a judge strays, the only remedy is more legislation - which in political terms is much more costly") (emphasis in original).
279. Easterbrook, supra note 122, at 9.
280. Schuck, supra note 210, at 781-82. This argument is subject to dispute. Commentators long have complained that agencies are subject to "capture" by certain narrow (but powerful) interest groups; such groups arguably are better able to command an agency's attention than diffuse interests. See, e.g., Daniel A. Farber, Positive Theory as Normative Critique, 68 S. CAL. L. REV. 1565, 1570 (1995). But see Spence, supra note 104, at 437 (arguing that "[t]he agency decisionmaking environment . . . [is] less susceptible to the interest group influence and strategic behavior that accompany the legislative decisionmaking environment"); Spence & Cross, supra note 29, at 122 ("No family of public choice models seems more irrelevant yet is more widely cited than capture models."). The same concerns about capture could well be applied to courts, however. As Harold Krent has argued, "lawmaking by judges may be just as prone to interest group influence as lawmaking by agencies. Concentrated interests possess a distinct advantage in the litigation process because of their access to the resources necessary to conduct skillful and frequent litigation." Krent, supra note 27, at 730.
281. See also Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 66-68 (1991) (suggesting that the judicial process is not immune from the influence of concentrated interests);
282. Paul H. Rubin, Common Law and Statute Law, 11 J. LEGAL STUD. 205, 211-13 (1982) (contending that judicial decisions tend to favor repeat-player organized interests); Spence & Cross, supra note 29, at 139-40 (arguing that "[w]hile courts may not be directly captured by special interests, they can be readily manipulated by those interests," and noting that Congress created the Interstate Commerce Commission to deal with railroad regulation in part because "it feared that the big railroads would have an unfair advantage before the courts").
283. Schuck, supra note 210, at 781.
284. 5 U.S.C. § 553 (2000). But cf. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1562-76 (1992) (arguing that the opportunities for public participation in agency rulemaking may be limited in some circumstances, for example where an agency has its staff perform preliminary analyses of regulatory options or invites certain insider groups to participate before it initiates a rulemaking proceeding).
285. See § 706(2)(a) (providing for judicial review under the arbitrary and capricious standard); Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (describing arbitrary and capricious standard).
286. Schuck, supra note 210, at 781.
287. Id. at 782.
288. Id.
289. Agencies solicit viewpoints when they engage in notice-and-comment rulemaking. Agencies also can make law through adjudications. See supra note 161. Like litigation in court, agency adjudication provides only the most limited opportunities for public participation and input. Indeed, commentators have stressed the limited opportunities for public participation as a reason why agencies should rely on rulemaking rather than adjudication to develop rules. See, e.g., Peck, supra note 162, at 757 ("[A]n agency [that] views as its role the formulation of policy solely upon an ad hoc basis may neglect entirely to seek the advice and comments of other interested parties in making a decision of momentous importance."); Shapiro, supra note 194, at 930 ("Though a decision may have far-reaching significance by reason of the rule it lays down, and affect many persons besides the particular litigants, only the latter will have participated in the rule-making process . . . ." (quoting Statement of Basis and Purpose of Trade Regulation Rules, 29 Fed. Reg. 8325, 8366) (proposed July 2, 1964))).
290. It is possible that courts are more accessible to certain segments of the population than other potential sites of lawmaking. While agencies, like legislatures, can exercise a significant degree of control over their agendas, courts typically have no choice but to decide the cases that come before them. As Larry Kramer has argued, "[t]his in turn makes it more difficult for courts to avoid hard questions, and they therefore provide a useful means for sponsors of unpopular or unusual causes to get their issues onto the political agenda." Kramer, supra note 86, at 270. Courts' inability to control their dockets might not be entirely positive, however. One consequence is that a significant amount of lawmaking by courts occurs in the course of litigation initiated by private plaintiffs who themselves are not accountable "for the social impact of their enforcement decisions." Stephenson, supra note 185, at 119. Agencies, by contrast, "are accountable to the electorate for their exercise of [prosecutorial] discretion through the President and, more indirectly, through congressional oversight." Id.
291. Even when proceeding through adjudications rather than rulemaking, agencies must give interested parties an opportunity to submit proposed findings and to object to proposed agency decisions. See Administrative Procedure Act, 5 U.S.C. § 557(c) (2000); Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1022 (2006) (describing procedural requirements that apply to agency adjudications and rulemaking).
292. Cf. Schuck, supra note 210, at 781 (describing agencies as a "meaningful site for public participation").
293. More often than not, the reasons for a decision, rather than the decision itself, have the most enduring effect as law. The importance of the reasoning in judicial opinions is illustrated by the efforts of judges on multi-member panels or courts to persuade their colleagues to join their opinions rather than simply their judgments. See Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371, 1377-80 (1995). Judges believe that it is critical to have a majority for an opinion and not just a judgment, see id. at 1377, because they know that it is the reasoning of the opinion, even the precise words used, that matter.
294. See Frederick Schauer, Opinions As Rules, 53 U. CHI. L. REV. 682, 683 (1986) ("[W]hen we are in the pit of actual application, we will discover that it is not what the Supreme Court held that matters, but what it said. In interpretive areas below the Supreme Court, one good quote is worth a hundred clever analyses of the holding.") (emphasis in original); Wald, supra, at 1394-95 (discussing the importance of the precise words chosen to describe legal principles).
295. See GILMORE, supra note 92, at 95 ("One of the facts of legislative life . . . is that getting a statute enacted in the first place is much easier than getting the statute revised so that it will make sense in the light of changed conditions."); Epstein & O'Halloran, supra note 29, at 709-12, 716 (stressing the importance of agency flexibility).
296. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994) ("It is this Court's responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law."); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.").
297. Schauer, supra note 85, at 910.
298. Reaching the Supreme Court is only the first step; the Court also must agree to grant certiorari. The Court currently hears approximately 1 percent of the cases in which petitions for certiorari are filed. See David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 TEX. L. REV. 947, 967 (2007).
299. See Eskridge, supra note 123, at 1362.
300. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("[T]he general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress 'expected courts to give shape to the statute's broad mandate by drawing on common-law tradition.'" (quoting Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 688 (1978))); Eskridge, supra note 123, at 1376-81.
301. Agencies, by contrast, are free to change their rules so long as they explain their reasons for doing so. See Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981-82 (2005). See also Neal v. United States, 516 U.S. 284, 295 (1996) (explaining that the Court "do[es] not have the same latitude [as an agency] to forsake prior interpretations of a statute").
302. See Schauer, supra note 85, at 895; supra notes 194-96 and accompanying text.
303. See Schauer, supra note 85, at 907-08 ("A rule that gets it right 99 percent of the time may well be a very good rule, but a process that focuses only on the remaining 1 percent may be a process influenced to believe that some of these very good rules are in need of modification.").
304. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (explaining that the Court enforces the nondelegation doctrine by "giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional").
305. The Benzene Case, 448 U.S. 607 (1980) (plurality opinion). For other cases employing the same technique, see Nat'l Cable Television Ass'n v. United States, 415 U.S. 336, 341-42 (1974) (narrowly interpreting a statute so as to (1) preclude a finding that "Congress had bestowed on a federal agency the taxing power," and (2) "avoid constitutional problems"); FPC v New Eng. Power Co., 415 U.S. 345, 351 (1974) (finding the same). In another group of cases, the Court has narrowly construed agency-administered statutes in order to avoid delegations in areas of particular constitutional concern. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575-78 (1988) (rejecting the National Labor Relations Board's construction of a statute on the ground that it raised serious First Amendment concerns); Hampton v. Mow Sun Wong, 426 U.S. 88, 115-16 (1976) (citing due process as reason to construe statute narrowly and invalidate Civil Service Commission regulation making resident aliens ineligible for many jobs); Kent v. Dulles, 357 U.S. 116, 128-30 (1958) (narrowly construing a statute that would have given the Secretary of State power to regulate the right to travel). Cf. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 170-74 (2001) (rejecting an agency's construction of a statute on the ground that it pushed the outer boundaries of Congress's Commerce Clause authority).
306. 29 U.S.C. § 655(b)(5) (2000). See also The Benzene Case, 448 U.S. at 611.
307. § 655(b)(5).
308. See The Benzene Case, 448 U.S. at 639.
309. Id. at 646 (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 539 (1935)).
310. Id. at 641-42. Justice Rehnquist, who concurred in the judgment, would have invalidated the statute as an unconstitutional delegation of power to the Secretary of Labor. See id. at 671-88 (Rehnquist, J., concurring in the judgment).
311. See Sunstein, supra note 103, at 236. See also Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370-77 (1986) (suggesting a distinction, for purposes of Chevron deference, between "major questions" and "interstitial matters").
312. MCI Telecomms. Corp. v. AT&T Corp., 512 U.S. 218, 234 (1994).
313. See id. at 221-22. See also Sunstein, supra note 103, at 236-37.
314. MCI, 512 U.S. at 231 ("It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion . . . .").
315. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
316. Id. at 125-26.
317. Id. at 126-27 (quoting 21 U.S.C. § 321(g)(1)(C) (1994)). The Court stated that it need not reach the question of whether tobacco is a drug because the FDA regulations at issue contravened the clear intent of Congress. Id. at 131-32.
318. See Manning, supra note 109, at 223-28 (arguing that Brown & Williamson can best be explained as part of the Court's efforts to avoid nondelegation problems through statutory construction).
319. See Brown & Williamson, 529 U.S. at 159; MCI, 512 U.S. at 231; discussion supra notes 110-17 and accompanying text (describing the typical Chevron presumption).
320. The major question cases (especially MCI) also could be understood as Chevron Step One cases, resting on the Court's conclusion that Congress did speak clearly to the issue in question. See Sunstein, supra note 103, at 244-47 (acknowledging that the major questions cases could be understood as implementing nondelegation doctrine, but arguing that they are "best read as Step One decisions"). Under either the nondelegation reading I have suggested or the Step One reading, the Court purports to limit the authority of both agencies and courts to resolve an issue, on the ground that Congress either must or already did address the issue itself.
321. There is some evidence that the Court already does apply the narrow-construction approach to statutes it administers, though without linking its actions to the nondelegation doctrine. In his study of congressional overrides of Court statutory interpretation decisions, William Eskridge noted that "the Court will sometimes refuse to interpret a statute broadly, especially when such an interpretation would represent a major policy decision that the Court would be more comfortable allowing Congress to make." Eskridge, supra note 140, at 389 & n.175. As Eskridge notes, however, "such signals by the Court do not [always] result in congressional action." Id. at 389.
322. See Manning, supra note 109, at 245 & n.117 (arguing that the Benzene plurality "seem[ed] to rewrite the OSH Act" and citing other commentators who share that view).
323. Lisa Schultz Bressman has argued that nondelegation norms are advanced when agencies come up with intelligible principles not specified by statute. Bressman, Schechter Poultry at the Millennium, supra note 78, at 1402. Bressman does not deny that an intelligible principle supplied by the agency itself does nothing to ensure that important policy decisions are made by Congress and not its delegate. See id. at 1423-27. Instead, she maintains that self-imposed limitations are valuable because they provide a means of controlling and monitoring agency discretion. See id. at 1424-27. But cf. Mark Seidenfeld & Jim Rossi, The False Promise of the "New" Nondelegation Doctrine, 76 NOTRE DAME L. REV. 1, 2 (2000) (arguing that "the benefits of the new nondelegation doctrine in promoting the values underlying the rule of law pale in comparison to that doctrine's impact on agencies' abilities to address the particularities of many problems that they are statutorily assigned to remedy").
324. Commentators critical of the Court's efforts to enforce the nondelegation doctrine through narrow tailoring of agency-administered statutes have offered a similar critique. See, e.g., Manning, supra note 109, at 228 ("If the point of the nondelegation doctrine is to ensure that Congress makes important statutory policy, a strategy that requires the judiciary, in effect, to rewrite the terms of a duly enacted statute cannot be said to serve the interests of that doctrine."); Pierce, supra note 108, at 2231 n.29 (arguing that "this remedy has precisely the vice the Court decried and prohibited in Chevron - it confers on politically unaccountable judges the power to make fundamental policy decisions"); David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?, 83 MICH. L. REV. 1223, 1271 (1985) ("When Congress has plainly delegated too broadly, construing the statute to avoid delegation problems can readily put the courts themselves in a legislative role."). If anything, those arguments apply with more force to any effort to cure deficiencies in court-administered statutes through narrow construction.
325. Whitman v. Am. Trucking Assn's, 531 U.S. 457, 473 (2001) (emphasis in original).
326. Id. at 473. The fact that the Court in the Benzene case believed it could avoid a nondelegation problem by supplying an intelligible principle itself - despite its reasoning to the contrary in American Trucking - exemplifies nondelegation law's single-minded focus on delegations to agencies, and the problems with that narrow view.
327. See, e.g., Abigail R. Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Non-interference (Or Why Massachusetts v. EPA Got It Wrong), 60 ADMIN. L. REV. (forthcoming 2008) (manuscript at 16-17, on file with author); Sunstein, supra note 103, at 243-46.
328. See Moncrieff, supra note 262 (manuscript at 23) ("Unless the nondelegation advocates assume that Congress remains a viable institutional option, their proposed exception to Chevron merely elevates judicial policymaking over administrative policymaking, which is to strike at the very heart of Chevron theory."). One could argue that the Court did not really decide anything itself; it simply enforced the status quo prior to the agency's action. But there is no good reason to treat the pre-regulation status quo as natural or inevitable, especially where, as in MCI, the challenged agency action reduced regulation. Cf. Sunstein, supra note 103, at 246 (arguing that the major question cases create an "unhealthy status quo bias").
329. Congress effectively overruled the Court's decision in MCI with the passage of the Telecommunications Act of 1996 ("1996 Act"), which, among many other things, explicitly authorized the FCC to omit nondominant carriers from the 1996 Act's tariff requirements. See Telecommunications Act, 47 U.S.C. § 160 (2000). It bears emphasis, however, that the 1996 Act was a comprehensive overhaul of the existing telecommunications regime, prompted by many factors other than a desire to correct the Court's mistake in MCI. For descriptions of the various forces behind the 1996 Act, see Jim Chen, The Legal Process and Political Economy of Telecommunications Reform, 97 COLUM. L. REV. 835 (1997);
330. Joseph D. Kearney & Thomas W. Merrill, The Great Transformation of Regulated Industries Law, 98 COLUM. L. REV. 1323 (1998). Congress did not respond to the Court's decision in Brown & Williamson. For a description of the interaction of both decisions and Congress's legislative efforts, see Moncrieff, supra note 262 (manuscript at 17-21).
331. See, e.g., Morris P. Fiorina, Congressional Control of the Bureaucracy: A Mismatch of Incentives and Capabilities, in CONGRESS RECONSIDERED 332, 343-46 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 2d ed. 1981); Merrill, supra note 8, at 22-23; Schoenbrod, supra note 259, at 1245.
332. See Seidenfeld, supra note 220, at 1522 (explaining that an "agency not bogged down by the requirement of strict separation of powers or the need for majority approval by two large bodies of elected legislators can act more quickly and efficiently than Congress").
333. See Mark Seidenfeld, Bending the Rules: Flexible Regulation and Constraints on Agency Discretion, 51 ADMIN. L. REV. 429, 482 (1999); Stephenson, supra note 185, at 140-41.
334. See also Kenneth A. Shepsle & Barry R. Weingast, Structure-induced Equilibrium and Legislative Choice, 37 PUB. CHOICE 503, 513-14 (1981) (describing obstacles to legislative action);
335. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS. 3, 10-11 (Winter & Spring 1994) (same). "[W]hen Congress does react to [judicial or] agency regulation, that reaction tends to be uncoordinated and responsive only to the most vociferous interest groups." Seidenfeld, supra, at 482. See also Eskridge, supra note 140, at 359-67 (describing the importance of interest groups in congressional overrides of Supreme Court statutory interpretation decisions).
336. Eskridge, supra note 140, at 366. Overall, Eskridge found that Congress overrode approximately 5 percent of the Court's statutory decisions each year in the 1980s. See id. at 377.
337. See supra notes 55-57 and accompanying text.
338. See supra notes 58-61 and accompanying text.
339. See supra notes 177-81 and accompanying text.
340. 15 U.S.C. § 1 (2000). Section 2 prohibits "monopolization] " of any part of interstate or international "trade or commerce." Id. § 2. For the sake of simplicity, this Part will focus on Section 1 alone.
341. Id. § 15.
342. Technically speaking, the FTC enforces the Sherman Act only indirectly, by incorporation of its prohibitions into § 5 of the Federal Trade Commissions Act. Id. § 45.
343. See Daniel A. Crane, Technocracy and Antitrust, 86 TEX. L. REV. (forthcoming 2008) (manuscript at 25 n.74, on file with author) (explaining that, between 1996 and 2005, private litigants filed over 800 federal antitrust cases per year, compared to approximately sixty-three cases filed by the DOJ Antitrust Division and a similar number of civil enforcement actions initiated by the FTC).
344. The FTC has the power to create substantive antitrust rules under the Federal Trade Commission Act, see 15 U.S.C. § 57a, but as a practical matter the FTC has not made use of that power, see Crane, supra note 275 (manuscript at 41-42).
345. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2712 (2007) (explaining that "the Court has never taken a literal approach to [the Sherman Act's] language" (internal quotation marks and citation omitted)). Cf. Daniel A. Farber & Brett H. McDonnell, "Is There a Text in This Class?" The Conflict Between Textualism and Antitrust, 14 J. CONTEMP. LEGAL ISSUES 619, 620 (2005) ("Antitrust cases generally discuss precedent and economic policy. They rarely include more than a passing citation to the statutory text.").
346. Bd. of Trade of Chicago v. United States, 246 U.S. 231, 238 (1918).
347. Id.
348. See HERBERT HOVENKAMP, THE ANTITRUST ENTERPRISE: PRINCIPLE AND EXECUTION 39 (2005) (describing "much of the legislative history" as "useless");
349. Daniel A. Crane, Antitrust Antifederalism, 96 CAL. L. REV. (forthcoming 2008) (manuscript at 4, on file with author) (describing legislative history as "notoriously tortured and unhelpful").
350. 9 ALEXANDER BICKEL & BENNO C. SCHMIDT, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE JUDICIARY AND RESPONSIBLE GOVERNMENT 1910-21, at 130 (1984) (describing the method of regulation reflected in the Sherman Act).
351. See Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 732 (1988) (explaining that Congress "adopted the term 'restraint of trade' along with its dynamic potential. It invokes the common law itself, and not merely the static context that the common law had assigned to the term in 1890"); Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 688 (1978) ("Congress . . . did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that [Congress] expected the courts to give shape to the statute's broad mandate by drawing on common-law tradition."); Appalachian Coals, Inc. v. United States, 288 U.S. 344, 360 (1933) (describing the antitrust laws as having "a generality and adaptability comparable to that found to be desirable in constitutional provisions"); 1 PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 103d2 (2d ed. 2000) (stating that the Sherman Act "invest[ed] the federal courts with a jurisdiction to create and develop an 'antitrust law' in the manner of the common law courts"); supra notes 118-20 and accompanying text.
352. William H. Page, Interest Groups, Antitrust, and State Regulation: Parker v. Brown in the Economic Theory of Legislation, 1987 DUKE L.J. 618, 659 (1987).
353. See also Frank H. Easterbrook, Workable Antitrust Policy, 84 MICH. L. REV. 1696, 1702 (1986) (noting that the Sherman Act "does not contain a program; it is instead a blank check").
354. HOVENKAMP, supra note 280, at 2. C.f. Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962) (acknowledging that "some of the results of large integrated or chain operations are beneficial to consumers" and that "higher costs and prices might result from the maintenance of fragmented industries and markets," but nevertheless striking down a proposed merger under the Clayton Act).
355. See generally Richard A. Posner, The Chicago School of Antitrust Analysis, 127 U. PA. L. REV. 925 (1979) (explaining the "Chicago approach to antitrust policy).
356. HOVENKAMP, supra note 280, at 2. See Town of Concord v. Boston Edison Co., 915 F.2d 17, 21-22 (1st Cir. 1990) (explaining that a practice is "anticompetitive" if it "obstructs the achievement of competition's basic goals - lower prices, better products, and more efficient production methods").
357. The Benzene Case, 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the judgment).
358. The Court brushed aside a nondelegation challenge to the Sherman Act in Standard Oil Co. v. United States, 221 U.S. 1 (1911), on the ground that the Act "generically enumerates the character of acts which it prohibits and the wrong which it was intended to prevent," id. at 69. That statement is hard to square with the Court's recognition in the same case that the Act's enumeration of the prohibited acts - all contracts, conspiracies, or combinations in restraint of trade - was "broad enough to embrace every conceivable contract or combination which could be made" and therefore "necessarily called for the exercise of judgment" in separating the wheat from the chaff. Id. at 60. The Court found guidance for that task not in the statute's text or history, but in the common law. See id. at 49-62.
359. The recent report of the Antitrust Modernization Commission explained that "[substantial economic learning now undergirds and informs antitrust analysis. Time and again in recent decades, the Supreme Court has used economic reasoning to develop standards for antitrust analysis. Case-by-case decision-making has provided myriad opportunities for the integration of economics into antitrust analysis, and litigating parties and the courts have used them." ANTITRUST MODERNIZATION COMM'N, REPORT AND RECOMMENDATIONS 4 (2007), available at http://govinfo.library.unt.edu/amc/report_recommendation/introduction.pdf.
360. See RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 229 (1999) ("[A]ntitrust law has become a branch of applied economics . . . ."); Crane, supra note 275 (manuscript at 26-27) (cataloguing the many technical questions that must be asked in most antitrust cases, such as: "[w]hat is the relevant market, as determined by cross-elasticity of demand between products; does the defendant have market power in the relevant market, as determined by whether the defendant has the power to raise price without regard to competitive response; did the defendant's actions harm the competitive process, as opposed to merely bringing harm to competitors[; and] were the defendants' actions justified by efficiency considerations . . . ?"); Farber & McDonnell, supra note 277, at 620 ("Discussions of antitrust often focus on economics, leaving many students with the feeling that they have mistakenly wandered into an econ class rather than a law class.");
361. John E. Lopatka & William H. Page, Economic Authority and the Limits of Expertise in Antitrust Cases, 90 CORNELL L. REV. 617, 620 (2005) ("Antitrust law has always implicitly drawn on economic ideas, but over the past three decades, its reliance on them has become overt and sophisticated.") (internal citation omitted).
362. United States v. Topco Assocs., Inc., 405 U.S. 596, 609 (1972).
363. See Town of Concord, 915 F.2d at 22 (emphasizing that "antitrust rules are court-administered rules" and explaining that "the need for clarity and administrability sometimes leads to per se rules"). See generally Daniel A. Crane, Rules Versus Standards in Antitrust Adjudication, 64 WASH. & LEE L. REV. 49 (2007).
364. On the choice between rules and standards, see generally, for example, Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983);
365. Louis Kaplow, A Model of Optimal Complexity of Legal Rules, 11 J.L. ECON. & ORG. 150 (1995).
366. See Polygram Holding, Inc. v. FTC, 416 F.3d 29, 33-34 (D.C. Cir. 2005) ("The Supreme Court's approach to evaluating a § 1 claim has gone through a transition over the last twenty-five years, from a dichotomous categorical approach to a more nuanced and case-specific inquiry."); Crane, supra note 291. The Court's decision in Leegin, discussed in Part III, supra, exemplifies this trend. See supra notes 130-38 and accompanying text.
367. See HOVENKAMP, supra note 280, at 2 ("[M]uch of so-called 'post-Chicago' antitrust . . . identifies] problems and solutions that are beyond the competence of the court system to comprehend and correct.").
368. See id. at 46-47.
369. See id.
370. Id. at 47.
371. The Court and lower federal courts have assumed that antitrust plaintiffs have a Seventh Amendment right to a jury trial in civil antitrust actions; and, of course, the Sixth Amendment grants defendants a right to a jury trial in criminal actions. See Crane, supra note 280 (manuscript at 32-33).
372. See HOVENKAMP, supra note 280, at 63 ("[J]uries remain a very weak link in a system where the most relevant evidence is economic and technical. Today the United States is virtually the only jurisdiction where competition policy issues are decided by lay juries in this fashion."); Crane, supra note 275 (manuscript at 25) ("Few institutions could be further from the technocratic model of expert administration than a randomly selected group of lay fact-finders."). See also Douglass W. Ell, The Right to an Incompetent Jury: Protracted Commercial Litigation and the Seventh Amendment, 10 CONN. L. REV. 775, 776 (1978) (arguing that "the jury may be particularly unsuited and unqualified to serve as a factfinder in protracted commercial litigation . . . ."). Criminal antitrust cases arguably are more appropriate fora for jury decision-making, as "criminal antitrust remains interested in the intent, truthfulness, knowledge, and moral culpability of the individual." Crane, supra note 275 (manuscript at 31-32).
373. See Arthur Austin, The Jury System at Risk from Complexity, the New Media, and Deviancy, 73 DENV. U. L. REV. 51, 52-59 (1995) (reporting anecdotal evidence that antitrust juries are "overwhelmed, frustrated, and confused by testimony well beyond their comprehension"); Crane, supra note 280 (manuscript at 34) (describing shortcomings injury comprehension).
374. Only about 2 percent of private federal antitrust cases make it to trial. Of the cases that go to trial, roughly half are tried to a jury and half are tried as bench trials. Crane, supra note 280 (manuscript at 35 n.140). As for criminal antitrust cases, most (approximately 86 percent) result in plea bargains, but those that go to trial are almost always heard by a jury. Crane, supra note 275 (manuscript at 31 n.107).
375. See Crane, supra note 280 (manuscript at 35). Cf. HOVENKAMP, supra note 280, at 7-8 (explaining that antitrust law produces many false negatives because courts have adopted narrow liability rules in order to counteract the "natural attempt by lawyers to turn every conceivable tort and contract dispute into an antitrust action"). The prospect of jury decisionmaking also may affect antitrust cases in ways that do not generate antitrust law. Most obviously, "[t]he risk, unpredictability, and potentially huge damages awards from trials assure that defendants will settle if the case survives summary judgment." Crane, supra note 291, at 79.
376. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007).
377. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
378. Crane, supra note 280 (manuscript at 37).
379. HOVENKAMP, supra note 280, at 4.
380. See supra notes 213-18 and accompanying text.
381. One might counter that the jury itself is a profoundly democratic institution. See Powers v. Ohio, 499 U.S. 400, 409 (1991) (describing jury service as a "significant opportunity to participate in civil life"). Congress is made up of the people's representatives; the jury is the people (or at least twelve of them). See Lemos, supra note 196, at 1254 n.198. At least in some contexts, decisionmaking by laypeople may be vastly preferable to decisionmaking by insulated technocrats. In particular, the jury is thought to be most valuable when called upon to reflect the moral judgment of the community. See, e.g., Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 58-59 (2003). Antitrust, however, is not such an area. See HOVENKAMP, supra note 280, at 47-49.
382. See Crane, supra note 280 (manuscript at 38) ("About two-thirds of private enforcers of antitrust are aggrieved competitors or other businesses vertically related to the defendant; fewer than twenty percent are consumers.").
383. See Stephenson, supra note 185, at 119. There is reason to fear that many antitrust plaintiffs are pursuing narrow private interests at odds with the public good, for example by seeking liability rules that discourage socially beneficial competitive behavior, or strategically abusing antitrust litigation to achieve similar ends. See Crane, supra note 280 (manuscript at 39). Cf. id. (manuscript at 40) ("Antitrust defendants do not have the interests of consumers at heart either. Like the competitor-distributor plaintiff class, antitrust defendants seek to promote market conditions conducive to reaping monopoly rents.").
384. See In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 665 (7th Cir. 2002); HOVENKAMP, supra note 280, at 90.
385. See Cascade Health Solutions v. Peacehealth, 479 F.3d 726 (9th Cir. 2007) (inviting amicus curiae briefs regarding a question of construction under Section 2 of the Sherman Act).
386. HOVENKAMP, supra note 280, at 57. See also id. at 305-06.
387. See 2 PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ∥ 303e (2d ed. 2000) ("Some possibly far-reaching rules of antitrust liability make sense and are administrable in practice only when there is a responsible filtering of the cases presented to the court . . . .").
388. See KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 70-74 (1969) (arguing that the FTC should make more of its rulemaking powers); Crane, supra note 275 (manuscript at 51-56) (arguing that the FTC should assume a norm-creating role in antitrust);
389. C. Scott Hemphill, Paying For Delay: Pharmaceutical Patent Settlement as a Regulatory Design Problem, 81 N.Y.U. L. REV. 1553, 1618-23 (2006) (discussing the importance of FTC expertise in areas at the intersection of antitrust and other regulatory schema, and arguing that the FTC and other "competition regulators]" must play a central role in "decoding the meaning of a legislative enactment as it bears upon industry economics and antitrust law"). A shift to a more regulatory and less litigation-focused model may already be underway. For example, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, 90 Stat. 1383 (codified in relevant part at 15 U.S.C. § 18a), largely replaced litigation over mergers with pre-merger administrative review.
390. See, e.g., E. Thomas Sullivan, The Antitrust Division as a Regulatory Agency: An Enforcement Policy in Transition, 64 WASH. U. L.Q. 997, 1024-43 (1986) (describing the regulatory role played by the DOJ Antitrust Division with respect to proposed mergers under the Hart-Scott-Rodino Antitrust Improvements Act).
391. By using the language of choice here, I do not mean to suggest that all (or even most) delegations are intentional. Chevron established a presumption that ambiguity in an agency-administered statute discloses a congressional intent to delegate to the agency. As others have observed, the presumption is based on a fiction. See, e.g., Merrill & Hickman, supra note 73, at 871-72 (noting that the Chevron presumption "has been described by even its strongest defender as 'fictional'"). Ambiguity is not necessarily intentional, and even when it is intentional, it may not necessarily reflect a conscious intent to delegate. The same may be true regarding the choice of delegate. Due in large part to confusion over the scope of Chevron, it often will be difficult for Congress to predict with any certainty whether a given question will be resolved by a court or an agency. See generally Vermeule, supra note 9. It seems less likely, however, that there will be similar uncertainty about the decision whether or not to appoint (or create) an agency to administer a given statute. That is, while there may be difficult questions at the margins, Congress presumably will know whether courts or an agency will take primary responsibility for interpreting and administering a statute. In any event, nothing in the argument here turns on the view that Congress typically will make an intentional choice of delegate. Regardless of whether Congress is delegating to courts on purpose or by mistake, it is delegating. The operative question is whether delegations to courts are defensible, not whether they are intentional.
392. See supra notes 28-30 and accompanying text.
393. Judges commonly are thought to be more protective of minority interests than legislators and other governmental decisionmakers whose jobs depend to some measure on popular support. For a small sampling of the vast literature on the subject, see generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980);
394. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985);
395. Milner S. Ball, Judicial Protection of Powerless Minorities, 59 IOWA L. REV. 1059 (1974);
396. Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287 (1982).
397. See supra note 226.
398. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishing an intricate burden-shifting framework to address the problems of proof in Title VII cases). It bears emphasis that judges' experience with the nondiscrimination commands of the Constitution may have a limiting effect on their enforcement of Title VII and other civil rights statutes, in that judges may naturally (but perhaps erroneously) equate the statutory and constitutional prohibitions. That may help explain a seeming anomaly - that judges have tended to interpret antidiscrimination statutes quite narrowly. See, e.g., Ruth Colker, The Mythic 43 Million Americans With Disabilities, 49 WM. & MARY L. REV. 1, 14-19 (2007) (explaining that "[t]he Supreme Court has consistently interpreted various civil rights laws so narrowly that they cannot provide meaningful protection under an anti-subordination perspective");
399. Julie Chi-hye Suk, Antidiscrimination Law in the Administrative State, 2006 U. ILL. L. REV. 405, 440-42 (describing how the Equal Employment Opportunity Commission has interpreted Title VII more broadly than courts have).
400. See also Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win?, 61 LA. L. REV. 555, 561-71 (2001) (discussing various biases that may affect judges' resolution in discrimination cases).
401. See Stephenson, Allocation of Delegated Power, supra note 9, at 1038 (noting that the factors that influence Congress's choice of delegate "are not well understood," and modeling a "subset" of the possible considerations - the "relative variability of agency and judicial interpretive decisions, both across time and across discrete issues").
402. See Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 502 (2005) (noting the dearth of information on, and attention to, the questions of "[H]ow do agencies interpret statutes? Are there distinctive interpretive methodologies that appeal to administrators? In what contexts? With what effects?").
403. See supra note 234 and accompanying text.
404. See supra notes 235-37 and accompanying text.
405. Of course, one might take the view that delegations to courts are bad for other reasons, and therefore applaud super-strong stare decisis as providing some check on the discretion of courts. Although precedent is notoriously manipulable, especially at the Supreme Court level, an absolute prohibition on departing from an earlier interpretation of a statute certainly would impose some limits on the range of judicial options. It also would maximize Congress's incentives to monitor the Court's work closely and to override any decisions with which it strongly disagrees.
406. See Stephenson, Allocation of Delegated Power, supra note 9.
407. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved . . . ."); Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 687-703 (1999) (detailing the Court's insistence through the years that consistency is particularly important in areas where there are significant property or reliance interests).
408. See supra note 235 and accompanying text.
409. The federal judiciary plays an important role in determining who can access its lawmaking powers. Especially in the last forty years, courts have developed rules of standing that govern, with increasing complexity, the conditions under which individuals and groups can pursue a federal lawsuit. See C. Douglas Floyd, The Judiciability Decisions of the Burger Court, 60 NOTRE DAME L. REV. 862, 864 (1985) (describing the proliferation of new standing rules created under the Burger Court). From the perspective of the nondelegation doctrine, restrictive standing rules might be seen as a positive development, as they limit the range of cases where courts make law. Cf. Stearns, Justiciability, supra note 193, at 1319-20. In theory, at least, they also help ensure that the people who have access to the court are representative of those who will be affected by the court's decision, and have adequate incentives to "fight the good fight." Such assurances are especially important given that one of the most significant differences between courts and agencies (and Congress) is that only the parties to a case and their amici can have a voice in the judicial decisionmaking process. On the other hand, the nondelegation perspective also might suggest some negative features of restrictive standing rules. Courts already are less accessible to public participation than agencies (and Congress). See supra text accompanying notes 225-27. Standing rules further restrict the range of voices that can be heard. This is not a new complaint - many commentators have criticized the Court's standing doctrine on similar grounds.
410. See, e.g., Adam A. Milani, Wheelchair Users Who Lack "Standing": Another Procedural Threshold Blocking Enforcement of Titles II and III of the ADA, 39 WAKE FOREST L. REV. 69 (2004) (scrutinizing standing doctrine as a procedural hurdle that overly restricts people with disabilities from remedying violations of the Americans with Disabilities Act);
411. Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. PA. L. REV. 635, 635 (1985) (explaining that the standing doctrine has "been employed without consistent rationale to fence out disfavored federal claims");
412. Richard J. Pierce, Jr., Is Standing Law or Politics?, 77 N.C. L. REV. 1741, 1750-58 (1999) (noting that standing is a malleable doctrine that has allowed Supreme Court Justices to assert their own ideological preferences in limiting prisoners', employees', and environmentalists' access to courts). But recognizing that courts are exercising lawmaking power delegated from Congress focuses the critique in meaningful ways. It makes clear that the relevant alternatives include not only litigation under a less restrictive standing regime (the usual proposal), but also a shift of lawmaking authority back to Congress, or to a different delegate. That is, if one believes that a particular aspect of standing doctrine unduly limits the range of voices the courts hear when developing a particular aspect of the law, it is worth asking not only whether standing doctrine should change, but also whether courts are the best institutions for the lawmaking in question.
413. Most scholars agree that any valid exercise of common lawmaking by federal courts must be linked in some way to the Constitution or federal statutory law (or regulations). See John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 116-17 (1998) ("A consensus of modern scholars agrees that, to create judge-made law, a federal court 'must point to a federal enactment, constitutional or statutory, that it interprets as authorizing the federal common law rule.'" (quoting Field, supra note 171, at 887)). Common lawmaking, in other words, must have its roots in a delegation of power to the courts. Yet virtually no one has considered the possibility that there might be limits on the scope of permissible delegations. Thomas Merrill is a rare exception. Merrill has suggested that permissible delegations to courts must frame with reasonable specificity the area in which judicial lawmaking is to take place. Merrill, supra note 8, at 41 n.182. Merrill describes such a requirement as "more restrictive than the test applied in assessing the constitutionality of delegations to the executive branch, at least as that test has been applied in practice," but he does not explain why delegations to courts should be more strictly limited than delegations to agencies, nor does he explain why the relevant inquiry should be whether the matters being delegated are clearly defined rather than whether the exercise of discretion is appropriately circumscribed. Id.
414. See supra note 79.
415. See Cannon v. Univ. of Chicago, 441 U.S. 677, 731-32 (1979) (Powell, J., dissenting) (arguing that the decision whether to create a private right of action "should have been resolved by the elected representatives in Congress after public hearings, debate, and legislative decision. It is not a question properly to be decided by relatively uninformed federal judges who are isolated from the political process"). Attention to nondelegation principles might suggest that courts should take a different approach to the question of implied rights of action depending on whether the statute in question is administered by an agency. For example, Matthew Stephenson has argued that agencies are better situated than courts to determine whether to recognize a private right of action. Stephenson, supra note 185. That argument works, of course, only if an agency already is involved in the administration of the statute. It may be more difficult to defend a restrictive approach to implied rights of action with respect to judicially administered statutes such as 42 U.S.C. § 1983 (2000).
416. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 10-11 (1994) (defending nonoriginalist approaches to statutory interpretation);
417. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1-4 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (defending a "purposive" understanding of statutory interpretation, under which courts must attempt to give effect to the goals of statutes as the law evolves). Of course, many judges and scholars reject the proffered justification.
418. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 9-37 (1997) (defending textualist theory of statutory interpretation);
419. John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001) (same).
420. See also Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 63 (1994) (arguing that judges "are supposed to be faithful agents, not independent principals").
421. See supra notes 111-17 and accompanying text (describing Chevron).
422. Cf. Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. CT. REV. 429, 434, 438 (arguing that we have entered "a period of Supreme Court uncooperativeness with Congress" marked by an apparent assumption on the part of some of the Justices that "where Congress has acted, it has (sole) responsibility for the elucidation of policy, and the only appropriate role of courts is to apply the policies enacted by the acting Congress, whose dimensions properly change only when Congress chooses to act again").
423. See Manning, Absurdity Doctrine, supra note 8.
424. Manning also has offered an interesting argument, grounded in nondelegation principles, about courts' use of legislative history. His claim is that use of legislative history encourages Congress to engage in self-delegation, leaving responsibility for important statutory details to the committees or individual members who dominate the legislative record. See Manning, Textualism, supra note 8. Such self-delegation is likely to be more attractive to Congress than delegation to an agent - whether court or agency - that Congress cannot control as directly. Therefore, the argument goes, when courts rely on legislative history they are both giving effect to Congress's self-delegations and encouraging Congress to resort to that tempting, but unconstitutional, gambit more frequently. Manning's argument with respect to legislative history concerns a different type of delegation than the kind this Article considers - self-delegation rather than delegation to a coordinate branch. It is worth noting, however, that in this context as well Manning focuses exclusively on courts, even though his argument would seem to apply with equal force to the use of legislative history by agencies. Several prominent administrative law scholars have argued that agencies should rely on legislative history, and that such reliance constrains their discretion in ways that might be seen to promote nondelegation norms. See Mashaw, supra note 322, at 511-13; Schuck, supra note 210, at 785; Peter L. Strauss, When the Judge Is Not the Primary Official With Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321 (1990).
425. See Easterbrook, supra note 122, at 14; Sunstein, supra note 114, at 2118.
426. Cf. Peter S. Heinecke, Chevron and the Canon Favoring Indians, 60 U. CHI. L. REV. 1015, 1023 (1993) (arguing that courts should not set aside agency interpretations on grounds of absurdity because "[o]ne of the motivating factors behind Chevron deference is that agencies have greater expertise; they presumably know better than courts what constitutes an 'absurd' result").