Democracy Can't Be Delegated
The constitutional principle of nondelegation reveals why the Supreme Court is not meant to decide major questions of American politics.
Edited by Peter J. Wallison and John Yoo (American Enterprise Institute Press, 398 pp., $42.00
Accusations that the Supreme Court is “illegitimate” or has gone “rogue” are now commonplace, especially in the wake of the Court’s overturning of Roe v. Wade. But on the whole, the Court’s recent rulings stand for a principle that ought to be uncontroversial: Neither the Court itself nor unelected administrative agencies are meant to decide the major questions of American politics. Elected representatives are. This line of reasoning holds true even for an issue like abortion—a fraught issue that raises challenging questions surrounding life, privacy, and morality, and about which reasonable people of good faith have deep and genuine disagreements.
The Court’s willingness to trust the electorate and its elected representatives to decide such issues isn’t extreme; it accords with both the Constitution and democratic norms. From the perspective of getting the law right, then, the Court’s allegedly radical turn is a welcome shift. It’s also more popular than much of the commentary portrays.___STEADY_PAYWALL___
Take the overturning of Roe. Article after article asserts that the Supreme Court’s ruling in Dobbs—which held that there is no constitutional right to abortion and that abortion policy is a matter for elected officials to decide—was at odds with public opinion. That claim doesn’t seem to be true once the question is framed more clearly than some variant of “Roe or no?” In a recent Harvard/Harris poll, for example, only 25 percent of respondents said it would be better for the Supreme Court to decide abortion policy (Roe), while a whopping 75 percent said that either Congress or state legislatures should make that call (Dobbs). Americans still have a democratic impulse. The Supreme Court’s returning of the fraught question of abortion to the political process squares with that impulse.
It is in this light—of the Court foisting responsibility onto elected representatives as the Constitution demands—that we ought to view the resurgence of a concept in constitutional law known as the “nondelegation doctrine.”
In a new book published by the American Enterprise Press, law professors and judges dig into the nondelegation doctrine—what it is and what it should be.
First, what it is: The nondelegation doctrine is a legal principle that holds that Congress may not hand off its constitutional power to make law to the executive branch. A hypothetical illustrates the point: Per the nondelegation doctrine, Congress could not pass a law creating and empowering a body called “Shmongress” to write the nation’s laws. The roots of the doctrine lie in the Vesting Clause of Article I of the Constitution, which states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” As University of Virginia law professor Saikrishna Prakash puts it in his essay, this language reflects a “deliberate choice” made by the framers regarding “institutional design”: They tasked Congress—not the courts, not the president, and not the administrative agencies beneath the president—with writing the laws. The nondelegation doctrine seeks to ensure that we remain faithful to this key facet of our constitutional structure. It forces Congress to do its job.
The nondelegation doctrine has long been a part of Supreme Court jurisprudence, though in practice the Court has been rendering it a dead letter, until recently. After the nondelegation doctrine briefly came to the fore during the New Deal, the Court has consistently upheld vast delegations of policymaking authority to administrative agencies. To cite just one example: In the 2001 case of Whitman v. American Trucking Associations, Inc., the Supreme Court held that Congress’ empowering of the Environmental Protection Agency (EPA) under the Clean Air Act to set air quality standards that, “allowing an adequate margin of safety, are requisite to protect the public health,” was not an unconstitutional delegation of lawmaking power to the EPA. In his majority opinion, Justice Antonin Scalia reasoned that this guidance constituted enough of an “intelligible principle” to be upheld.
In the wake of Justice Neil Gorsuch’s dissent in a 2019 case called Gundy v. United States, the nondelegation doctrine is having a renaissance. In fact, the Supreme Court’s recent ruling in West Virginia v. EPA was motivated, in part, by the sorts of delegation concerns that Justice Gorsuch brought to the fore in Gundy.
Yet scholars are still grappling with the question Justice Gorsuch posed in Gundy: “What’s the test?” That is, if the Court were to discard the current iteration of the nondelegation test that gave rise to permissive holdings like Whitman, what standard should replace it?
The most persuasive test offered in this edited volume—in terms of getting the original meaning of the Constitution correct and squaring with common sense—comes from Boston University law professor Gary Lawson. Lawson reminds us that the Constitution itself is the product of a delegation: a delegation of sovereign power from “We the People” to Congress to make the nation’s laws. Thus, the question is: How much power can the Congress subdelegate to other actors, like executive branch agencies?
Lawson looks to Chief Justice Marshall’s statement in Wayman v. Southard, which has traditionally been seen as providing insufficient guidance for courts’ nondelegation inquiries, for the answer. There, Marshall stated that Congress must itself decide “important subjects” when writing laws, even while it may allow other governmental actors to “fill up the details” of “general provisions” of law. Lawson argues that this standard is not as indeterminate as it might seem at first, for Marshall was drawing on the well-known private law framework of agency law: In carrying out tasks assigned to them by their principals, agents could only subdelegate “with respect to incidental matters”—namely, what Marshall called matters “of less interest.” But the agent himself could not subdelegate “those discretionary aspects of the tasks at hand” to someone else. In other words, when the agent (Congress) was empowered by the principal (We the People) to make a meaningful choice, they could not shirk that duty by passing it off to a subagent.
Some authors in the volume, like University of San Diego law professor Michael Rappaport, offer alternatives to this “important subjects” approach to nondelegation. Rappaport proposes a “categorical” approach, under which Congress may delegate large swaths of policymaking discretion to the executive branch “in a variety of traditional areas of executive responsibility” like foreign affairs, while the executive branch and its administrative agencies would be “categorically forbidden from exercising any policymaking discretion” in areas like the regulation of “the private rights of individuals in the domestic sphere.” As Rappaport himself notes, there may be significant overlap between the two approaches.
Whether the “important subjects” or “categorical” variant of the nondelegation doctrine wins the day, the volume explains how adopting a more restrictive test need not render “most of government . . . unconstitutional,” as Justice Kagan put it in her Gundy plurality opinion. Judge Douglas H. Ginsburg of the D.C. Circuit writes that in the face of a revived nondelegation doctrine, Congress could “ratify all outstanding regulations, or all the regulations of a particular agency, in an omnibus statute simply stating that it approves and adopts as its own all the policy decisions embodied, implicitly or explicitly, in those regulations.” And Prakash notes that the Court could delay giving effect to its nondelegation decisions that invalidate agency actions—by way of “stays”—to give Congress a chance to enshrine into law whatever the contested regulation is. In doing so, Congress would shoulder responsibility for both its benefits and costs. Government would go on, though our elected officials would be more accountable: as New York Law School professor David Schoenbrod explains in his essay, Congress would no longer be able “to blame agencies for promised benefits not delivered and burdens imposed.”
Ultimately, the Court must focus on getting the law right, and the authors of The Administrative State Before the Supreme Court have mounted a persuasive case that a reinvigorated version of the nondelegation doctrine would help on that front. And getting the law right might also have the added benefit of further concretizing our politics. That’s a good thing. With more responsibility forced into Congress’s hands, the actual stakes of elections will be raised. We might have no choice but to argue a bit more about concrete policies and focus a bit less on symbolic gestures, due to the simple fact that Congress, and not administrative agencies, will be making more of the decisions that actually impact our daily lives.
At the moment, whether we can shoulder that burden of self-government is an open question. Only we can answer it.
Thomas Koenig, a contributing editor of American Purpose, is a student at Harvard Law School and author of “Tom’s Takes” newsletter. Twitter: @thomaskoenig98
Image: Construction of the Capitol dome, between 1860-63. (Library of Congress)
American Purpose newsletters
Sign up to get our essays and updates—you pick which ones—right in your inbox.Subscribe