Deconstructing nondelegation

Harvard Journal of Law and Public Policy

Volumn 33, Issue 1, 2010, Pages 87-102

  Farina, Cynthia R ^a,b,c  

^a MIT Sloan School of Management   (United States)

^b Cornell E Rulemaking Initiative ^*  (United States)

^c Cornell Law and Public Policy Program ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78049251360     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (92)

1. Field v. Clark, 143 U.S. 649, 692 (1892).
2. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (first alteration in original) (quoting U.S. CONST, art. I, §1).
3. See PETER L. STRAUSS, TODD D. RAKOFF & CYNTHIA R. FARINA, GELLHORN & BYSE'S ADMINISTRATIVE LAW 66-77 (rev. 10th ed. 2003).
4. See Am. Trucking Ass'ns v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (per curiam);
5. Am. Trucking Ass'ns v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (per curiam).
6. 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.'"
7. (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting))).
8. State constitutional opinions similarly tend to begin with a ringing declaration of the constitutional centrality of an absolute nondelegation principle, after which they sustain the challenged statute. See, e.g., State ex rel. R.R. & Warehouse Comm'n v. Chicago, Milwaukee & St. Paul R.R. Co., 37 N.W. 782, 786-88 (Minn. 1888);
9. Cincinnati, Wilmington & Zanesville R.R. Co. v. Comm'rs of Clinton County, 1 Ohio St. 77, 87-91 (1852).
10. E.g., Symposium, The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives, 20 CARDOZO L. REV. 731 (1999).
11. See, e.g., James Boyle, A Nondelegation Doctrine for the Digital Age?, 50 DUKE L.J. 5 (2000);
12. Jay S. Bybee & Tuan N. Samahon, William Rehnauist, the Separation of Powers, and the Riddle of the Sphinx, 58 STAN. L. REV. 1735, 1750-51 (2006);
13. Jim Rossi, "Statutory Nondelegation": Learning from Florida's Recent Experience in Administrative Procedure Reform, 8 WIDENER J. PUB. L. 301 (1999).
14. See Douglas H. Ginsburg & Steven Menashi, Nondelegation and the Unitary Executive, 12 U. PA. J. CONST. L. (forthcoming 2010).
15. Judge Ginsburg was in the majority of the panel that initially held the delegation unconstitutional, Am. Trucking Ass'ns, 175 F.3d at 1033, and then denied the government's petition for rehearing, Am. Trucking Ass'ns, 195 F.3d at 6.
16. 462 U.S. 919 (1983).
17. See Steven G. Calabresi, Closing Remarks at the University of Pennsylvania Journal of Constitutional Law Symposium: Presidential Power in Historical Perspective (Feb. 7, 2009).
18. The earliest federal nondelegation challenges-and losses-came within decades of the ratification of the Constitution. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825);
19. Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813).
20. Some scholars do insist that the Article I vesting clause itself establishes the nondelegation principle. See, e.g., Marci A. Hamilton, Representation and Nondelegation: Back to Basics, 20 CARDOZO L. REV. 807, 807 (1999) ("The language of the Constitution would seem to prescribe a bright-line doctrinal approach."). With respect, this position seems unsupportable. Within our legal system, a simple grant of power without more does not conclusively resolve whether or when an agent can subdelegate. See infra text accompanying notes 21-43. Moreover, if the Article I vesting clause prevents delegation, so, it would seem, must the Article II and III vesting clauses. Yet the President's ability to delegate executive power is well established. See infra text accompanying notes 27-28. As for Article III, the relationship between Article III judges and non-Article III decision makers, such as magistrates and bankruptcy judges, is a perennial conceptual maze.
21. See RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 363 (6th ed. 2009) (stating that "the Supreme Court has brought little but confusion to this area"). It blinks reality, however, to assert that no part of the judicial power of the United States has been delegated to those officials.
22. See, e.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 405-11 (1928);
23. Cincinnati, Wilmington & Zanesville R.R. Co. v. Comm'rs of Clinton County, 1 Ohio. St. 77,87-88 (1852).
24. 15.143 U.S. 649, 693-94 (1892).
25. Cincinnati, Wilmington & Zanesville R.R. Co., 1 Ohio St. at 87.
26. Id.
27. J. W. Hampton, Jr. & Co., 276 U.S. at 405-06.
28. See, e.g., Indus. Union Dep't v. Am. Petroleum Inst, 448 U.S. 607, 672-73 (1980) (Rehnquist, J., concurring);
29. Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U. CHI. L. REV. 1297, 1297 (2003);
30. Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1725, 1729 (2002).
31. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 1 141 (C.B. Macpherson ed., Hackett Publ'g Co., Inc. 1980) (1690). Locke wrote: 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.... And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those, whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands. Id. at ¶ 141 (emphasis omitted).
32. RESTATEMENT (FIRST) OF AGENCY §78 (1933).
33. Id. §35.
34. Id. §79 ("[A]n agent is authorized to appoint another agent for the principal if," among other contingencies, "the proper conduct of the principal's business in the contemplated manner reasonably requires the employment of other agents.").
35. Id. §80 ("[A]uthority to appoint a subagent is inferred from authority to conduct a transaction for the principal if," among other things, "the business is of such a nature ... that it is impracticable for the agent to perform it in person.").
36. Id. §34 cmt. d.
37. Id. §35 cmt. c.
38. E.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1242 (1994) ("Of course, the President cannot be expected personally to execute all laws.").
39. U.S. CONST, art. I, §8, cl. 18.
40. RESTATEMENT (FIRST) OF AGENCY §34 cmt. d.
41. Id. §79 ("[A]n agent is authorized to appoint another agent for the principal if... the proper conduct of the principal's business in the contemplated manner reasonably requires the employment of other agents.").
42. Id. §33 (emphasis added).
43. Id. §33 cmt. a.
44. Id. §35 cmt. c ("It is not essential to the authorization of an act that the principal should have contemplated that the agent would perform it as incidental to the authorized performance.").
45. Id. §7.
46. Id. §26.
47. Id. §33 cmt. a.
48. Id. §43 cmt. b.
49. See, e.g., id. §§49,159 (discussing apparent authority and the rules that apply to unauthorized acts taken under apparent authority).
50. See id. §§82-84, 93 (defining ratification and affirmance).
51. See, e.g., United States v. Grimaud, 220 U.S. 506, 516 (1911) (noting that "[i]n the nature of things it was impracticable for Congress to provide general regulations for these various and varying details of management" of federal reserved lands).
52. See, e.g., 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.").
53. RESTATEMENT (FIRST) OF AGENCY §80 ("[A]uthority to appoint a subagent is inferred from authority to conduct a transaction for the principal" if, among other things, "the business is of such a nature ... that it is impracticable for the agent to perform it in person.").
54. Grimaud, 220 U.S. at 516 (internal quotation marks omitted).
55. See, e.g., THEODORE J. Lowi, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES 92-126 (2d ed. 1979);
56. DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).
57. Lawson, supra note 27, at 1233-37.
58. Id. at 1237-41.
59. Cf. CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 106-10 (1990) (advocating, among other things, "a presumption in favor of flexible, market-oriented, incentive-based, and decentralized regulatory strategies").
60. Cf. STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993) (describing the overlap, inconsistency, and irrationality of health and safety regulatory programs).
61. Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223 (1986).
62. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 528-29 (1992).
63. JACK N RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 214-21 (1996);
64. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787, at 403-13 (2d ed. 1998).
65. RAKOVE, supra note 51, at 216;
66. WOOD, supra note 51, at 403-13.
67. See, e.g., John O. McGinnis, Presidential Review as Constitutional Restoration, 51 DUKE L.J. 901, 910-20 (2001).
68. See, e.g., WILLIAM D. POPKIN, STATUTES IN COURT 201 (1999) ("[T]he dominance of statute law in modern government requires reconsideration of the presumption that... statutes in derogation of the common law should be narrowly construed.");
69. PETER L. STRAUSS, LEGISLATION: UNDERSTANDING AND USING STATUTES 144-51 (2006) (noting that the early twentieth century "was a time when statutes began to replace case decision (i.e. the common law) as the primary source of law in American jurisprudence").
70. See Christopher Ellis & James A. Stimson, Operational and Symbolic Ideology in the American Electorate: The "Paradox" Revisited 2-5, 37 (Apr. 7, 2005) (unpublished manuscript), available at http://www.allacademic. com/meta/p85321-index.html (reviewing data from 1970-2002 showing that Americans, on average, prefer policies through which the government spends and does more to solve social problems, and that this clear preference varies within a relatively small range, never quite touching the neutral point even at its most extreme con-
71. servative moments); see also Cynthia R. Farina, False Comfort & Impossible Promises: Information Overload, Uncertainty and the Unitary Executive, U. PA. J. CONST. L. (forthcoming) (on file with author) (reviewing political science literature on the majority's "liberal" regulatory preferences).
72. See SUNSTEIN, supra note 47, at 107-09.
73. For example, the emergence of the lucrative environmental cleanup industry is often blamed for difficulty in amending the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. See Cynthia R. Farina, Faith, Hope and Rationality: Or, Public Choice and the Perils of Occam's Razor, 28 FLA. ST. U. L. REV. 109, 123-24 (2000).
74. See, e.g., BREYER, supra note 48, at 39-42 (identifying "congressional reaction to perceived risk and to regulatory problems, which takes the form of detailed statutory instructions," as one significant cause of inefficient, ineffective regulation).
75. COMM. ON THE STATUS AND FUTURE OF FED. E-RULEMAKING, ACHIEVING THE POTENTIAL: THE FUTURE OF FEDERAL E-RULEMAKING 3 (2008), available at http:// ceri.law.cornell.edu/documents/report-web-version.pdf [hereinafter ACHIEVING THE POTENTIAL],
76. John Ashlin et al., Regulations.gov Federal Regulatory Portal, 30 J. GOV'T INFO. 81, 82 (2004).
77. See Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 ADMIN. L. REV. 803 (2001).
78. 549 U.S. 497 (2007).
79. See id. at 511. Although the case was widely reported as requiring the EPA to regulate, the majority held only that the EPA has authority to regulate carbon dioxide and other greenhouse emissions and must provide a rational, legally valid explanation for not doing so. See id. at 533.
80. See Farina, supra note 55.
81. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75 (2001)
82. (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).
83. Id. at 472 (emphasis added).
84. See J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
85. INS v. Chadha, 462 U.S. 919, 953 n.16 (1983).
86. Mistretta, 488 U.S. at 417 (Scalia, J., dissenting); accord. Freytag v. Comm'r, 501 U.S. 868, 912 (1991) (Scalia, J., concurring in part and concurring in the judgment) ("It seems to me entirely obvious that the Tax Court, like the Internal Revenue Service, the FCC, and the NLRB, exercises executive power.");
87. Chadha, 462 U.S. at 953 n.16 ("It is clear, therefore, that the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act.").
88. See STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 29 (2008).
89. See LYN RAGSDALE, VITAL STATISTICS ON THE PRESIDENCY 253, 257-62 (1996).
90. See ACHIEVING THE POTENTIAL, supra note 59, at 8-11.
91. In the 110th Congress, more than twenty-five committees and subcommittees have jurisdiction over the EPA and its regulatory programs. See U.S. EPA, MAJOR CONGRESSIONAL COMMITTEES WITH JURISDICTION OVER EPA ISSUES 1-3, http://epa.gov/ocir/leglibrary/pdf/110housejuris.pdf.
92. See, e.g., Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 68-69 (2006).