Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We're Expecting

• Publication year: 2022

Decoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We're Expecting

Daniel E. Walters

DECODING NONDELEGATION AFTER GUNDY: WHAT THE EXPERIENCE IN STATE COURTS TELLS US ABOUT WHAT TO EXPECT WHEN WE'RE EXPECTING

Daniel E. Walters^*

Abstract

The nondelegation doctrine theoretically limits Congress's ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court's longstanding "intelligible principle" standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers' view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential.

While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent's line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme

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Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundy dissent's approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.

Introduction.............................................................................................419

I. The "Never-Ending Hope" ............................................................423

A. The Roots of the Nondelegation Doctrine ................................ 424
B. The Maturation of the Nondelegation Doctrine ....................... 427
C. The Increasingly Fraught Debate Over Nondelegation ........... 432
D. Gundy and the Future of the Nondelegation Doctrine ............. 437

II. An Empirical Analysis of State Court Nondelegation Decisions.........................................................................................441

A. Surveying the States: The Varying Formulations of the Nondelegation Doctrine ........................................................... 443
B. An Overview of the State Nondelegation Case Dataset ............ 449
C. Analysis of the State Cases ....................................................... 452

1. Trends Over Time ............................................................... 452
2. Analyzing Doctrinal Constraint ......................................... 456

D. External Validity: Can the States Shed Light on Federal Law? 467
E. Summary of the Empirical Analysis.......................................... 469

III. The Gorsuch Dilemma ..................................................................470

A. The Futility of a Doctrinal Shift ............................................... 471
B. The Judicial Economy of Nondelegation.................................. 477

Conclusion.................................................................................................485

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Introduction

Before Gundy v. United States,¹ the nondelegation doctrine was little more than an academic topic—the perfect device for teaching second- and third-year law students about the formative choices that had been made long in the past to enable the development of the modern administrative state. On paper, the doctrine stands for the proposition that Congress may not delegate any of the legislative power vested in Congress to any other actor, including the countless administrative agencies that make up our de facto fourth branch of government.² However, that paper requirement has only been observed in the breach. As a leading casebook proclaims, "[i]n some sense, the entire field known as 'administrative law' represents the efforts of courts and legislatures to come to terms with [the] fact" that the Court would not stand in the way of broad delegations of policymaking authority from Congress to administrative agencies.³ Some never quite stopped believing that the nondelegation doctrine would yet bear fruit for opponents of the growing regulatory state. Legal scholar Gary Lawson famously described the nondelegation doctrine as "the Energizer Bunny of constitutional law: No matter how many times it gets broken, beaten, or buried, it just keeps on going and going."⁴ In point of fact, though, other than in two outlier cases in 1935,⁵ the federal nondelegation doctrine has never been invoked to invalidate any federal statute delegating power to an agency, and it was, until quite recently, described as "dead."⁶

After Gundy, all of that changed. Although the Court's decision fit with the larger historical pattern of failed nondelegation challenges, there was

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considerably less consensus than the last time the Court decided a nondelegation case.⁷ Speculation about where the Court might be going on nondelegation has since reached a fever pitch. It started with Justice Gorsuch's dissent in the case.⁸ Not only did Justice Gorsuch make clear that his views on nondelegation had not changed a bit since his elevation to the Court,⁹ and not only did he apparently persuade three of his colleagues¹⁰ —including the generally cautious Chief Justice Roberts—of the righteousness of his cause,¹¹ but he also appeared to overcome one of the most significant barriers to a return of the nondelegation doctrine by articulating what appears to be a relatively justiciable three-part test to replace the capacious "intelligible principle" standard.¹² While Justice Kavanaugh did not participate in Gundy, he later indicated that he too was persuaded by Justice Gorsuch's dissent, bringing the count of interested justices to five.¹³ With the passing of Justice Ginsburg and her replacement by Justice Barrett, who is likely sympathetic to Justice Gorsuch's views as well,¹⁴ the "Energizer Bunny" seems like it might actually power a revolution this time around. All of this has left the field of administrative law in a state of debilitating

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limbo: will the modern administrative state survive a reinvigorated nondelegation doctrine?

This Article swims against the current in arguing that the changes in doctrinal formulation envisioned by a possible majority of the Court in and of themselves will not fundamentally change anything about how courts approach the problem of delegation.¹⁵ This counterintuitive position is data-driven: this Article looks to the experience in state courts, where versions of Gorsuch's alternative test have been implemented in hundreds of cases analyzing the propriety of delegations of legislative power under state law, for evidence of how a changed approach in federal court might pan out.¹⁶ At the state level, unlike in the federal courts, there is substantial variation in outcomes within and across states, making them a living laboratory for studying the likely impacts of an invigoration of the nondelegation doctrine at the federal level.¹⁷ But this Article finds that the form of the doctrinal test or standard is not a predictor of these outcomes.¹⁸ Moreover, none of the doctrinal formulations of the nondelegation doctrine has constrained massive changes over time in the pattern of decision-making in state courts as courts adjust to the conditions of a modern economy and a correspondingly more powerful state regulatory apparatus.¹⁹ While this Article finds that, consistent with other studies of state cases, nondelegation challenges are far more likely to succeed across the board in state court,²⁰ this likely represents a kind of equilibrium in the distribution of power between the federal and state governments, not some kind of qualitatively different approach to the nondelegation doctrine.²¹ Many states have a standard as liberal as the intelligible principle standard of the federal courts, insofar as they permit the delegation of policymaking discretion. Many other states, however, purport to draw a far more formalistic line between legislative and executive power, or permit only the delegation of discretion to determine "details" rather than "policies." No matter what approach state courts take to the

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nondelegation problem, though, they converge on a fairly stable and meager invalidation rate, particularly in recent years.

These data points carry several lessons pertinent to the ongoing debate over the future of the nondelegation doctrine. The allure of Justice Gorsuch's dissent is its promise to provide a clear test for impermissible delegations of the legislative power, and one that promises to vindicate certain policy concerns and values that are otherwise allegedly unenforced by the current intelligible principle standard's permissiveness. Others have argued, though, that Justice Gorsuch's benchmarks look better on paper than...