Why Delegation Is Limited

The Nondelegation Doctrine

Why Delegation Is Limited

Article I, § 1 provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States."¹ In Mistretta v. United States, the Court rooted the nondelegation doctrine in that sentence and in the separation of powers behind it. It repeated its long insistence that "the integrity and maintenance of the system of government ordained by the Constitution" mandate that Congress generally cannot delegate its legislative power to another branch.²

The same passage qualifies the rule at once. The separation of powers does not stop Congress from obtaining the assistance of its coordinate branches. Chief Justice Taft wrote in J.W. Hampton, Jr. & Co. v. United States that the extent and character of that assistance "must be fixed according to common sense and the inherent necessities of the government co-ordination."³ The working test follows from that statement. So long as Congress lays down an intelligible principle to which the recipient of the power must conform, the delegation is not forbidden.⁴

Two terms organize everything that follows. Delegation is the transfer of substantive power from Congress to an agency, usually through an organic act that also creates the agency, so that the agency makes rules or policy decisions with legal force.⁵ Nondelegation is the body of law that courts have built around the limits on that transfer. Despite its name, the doctrine is not hostile to delegation as such. The Supreme Court has invalidated legislation on delegation grounds on only two occasions, and courts more often read a statute so that the delegation becomes acceptable, avoiding a constitutional clash with Congress.⁶ Every challenge therefore turns on one question: how much discretion is too much?

The case for a limit begins with how slowly Article I makes law, and slowness is deliberate. Justice Gorsuch's dissent in Gundy v. United States describes the process: a bill must win approval in two Houses elected at different times, by different constituencies, and for different terms, and then either gain the President's approval or gather the votes to override a veto.⁷ The framers meant that process to restrain the government's power to restrict liberty, and they also meant it to promote deliberation. In Hamilton's words, the oftener a measure is examined by those in different situations, "the less must be the danger of those errors which flow from want of due deliberation."⁸ A rule that restricts private conduct should become law only after broad support has formed and the measure has survived that repeated scrutiny.

Now suppose Congress announces a goal and leaves the writing of binding rules to an agency. The rules would restrict liberty although the policy choices behind them never cleared the two Houses and the President, so the safeguard built into Article I would be bypassed. Accountability would suffer too, since only Congress is politically accountable for its policy choices, and Justice Rehnquist insisted that the hard choices "must be made by the elected representatives of the people."⁹ Courts cannot count on Congress to prevent this on its own. Legislators often face rational incentives to pass problems to the executive branch, and Madison warned that "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates."¹⁰ The dissent in Gundy drew the lesson that keeping legislative power in the legislative branch cannot be left to self-policing by Congress.

The opposite pull is practical, and it explains why the limit stops short of forbidding discretion. The Court has recognized that in a complex society, "replete with ever changing and more technical problems," Congress simply cannot do its job without delegating power under broad general directives.¹¹ Relying on Congress to amend its own statutes every time conditions change also carries a high decisional cost. Delegation to a lesser body assures that "the exertion of legislative power does not become a futility," and as Jefferson noted, it spares Congress a diversion "from great to small objects."¹² Agencies with lower decision costs are often better than Congress at working through "a labyrinth of detail."¹³ The doctrine therefore polices the degree of discretion that a statute confers, not the existence of discretion.

Stating where the line falls is harder than naming the two pulls, because a binding agency rule looks like legislation. A regulation whose violation brings sanctions appears to be an exercise of legislative power, yet it may also be regarded as the execution of the statute that authorizes it.¹⁴ Article I's text does not resolve the matter. One can describe an agency's implementation of a regulatory statute as an exercise of executive power even when the agency makes law along the way.¹⁵ The Constitution neither equates legislative power with policymaking nor prohibits Congress from delegating it, and the first Congress enacted two statutes that delegated the power to make binding policy decisions to other branches. Even so, no Justice questioned the doctrine's validity until 2001, and a majority of the Court continues to reaffirm it.¹⁶ Chief Justice Marshall conceded in 1825 that the line "has not been exactly drawn" between subjects the legislature must regulate entirely itself and those on which it may make a general provision and let others "fill up the details."¹⁷ Justice Rehnquist later put the working distinction in a sentence: "It is the hard choices, and not the filling in of the blanks, which must be made by the elected representatives of the people."¹⁸

The statute creating the Sentencing Commission also gave an outside body the power to write binding rules, and the Court upheld it. The petitioner in Mistretta argued that by delegating the power to promulgate sentencing guidelines for every federal criminal offense to an independent commission, Congress had granted the Commission excessive legislative discretion. The Court answered, "We do not agree."¹⁹ The two statutes differ in how much policy Congress decided for itself. In Mistretta, Congress sought expert help with work the Court found well suited to an expert body, because "developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate."²⁰

When an exam stem describes an agency writing binding rules, delegation has already occurred, so the question to ask is how much policy discretion the statute left the recipient. Ask whether Congress made the basic policy choices and gave direction the recipient must follow, as in Mistretta, or announced only a goal and left every choice open, as in the hypothetical above. The first kind of statute is a permissible request for assistance. The second surrenders the lawmaking power that Article I vests in Congress.