Delegation and Time

Author:Jonathan H. Adler & Christopher J. Walker
Position:Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law/John W. Bricker Professor of Law, The Ohio State University Moritz College of Law
Pages:1931-1993
1931
Delegation and Time
Jonathan H. Adler* & Christopher J. Walker**
ABSTRACT: Most concerns about delegation are put in terms of the
handover of legislative power to federal agencies and the magnitude of the
legislative policy decisions made by such agencies. Likewise, most reform
proposals, such as the Congressional Review Act and the proposed REINS
Act, address these gap-filling, democratic deficit concerns. The same is true
of the judicially created nondelegation canons, such as the major
questions doctrine and other clear statement rules. This Article addresses a
different, underexplored dimension of the delegation problem: the temporal
complications of congressional delegation. In other words, broad
congressional delegations of authority at one time period become a source of
authority for agencies to take action at a later time that was wholly
unanticipated by the enacting Congress or could no longer receive legislative
support. This problem has taken on added significance in the current era of
congressional inaction.
To address this distinct temporal problem of delegation, we suggest that
Congress revive the practice of regular reauthorization of statutes that govern
federal regulatory action. In some circumstances, this will require Congress to
add reauthorization incentives, such as sun-setting provisions. In other
regulatory contexts, Congress may well decide that the costs of mandatory
reauthorization outweigh the benefits. Nevertheless, we argue that Congress
should more regularly use this longstanding legislative tool to mitigate the
democratic deficits that accompany broad delegations of lawmaking authority
to federal agencies and spur more regular legislative engagement with federal
* Johan Verheij Memorial Professor of Law and Director, Coleman P . Burke Center for
Environmental Law, Case Western Reserve University School of Law.
** John W. Bricker Professor of Law, The Ohio State Univers ity Moritz College of Law. For
able research assistance, thanks to Nathan Coyne (Moritz Class of 2020). For helpful comments
on prior drafts, thanks to Alex Acs, Sarah Bender, Josh Chafetz, Jonathan Entin, Bill Eskridge,
Jonah Gelbach, Simon Haeder, Paul Larkin, Matthew Lawrence, Richard Lazarus, Brian Mannix,
Jennifer Mascott, Gillian Metzger, Richard Parker, Richard Pierce, Joseph Postell, David
Schoenbrod, Kevin Stack, Philip Wallach, and Susan Webb Yackee, as well as participants at the
Ohio State American Politics Seminar, University of Pennsylvania Law School Legislation
Seminar, and University of San Diego Law Faculty Workshop. The authors received funding from
the C. Boyden Gray Center for the Study of the Administrative State to prepare and present this
Article at the Center’s conference, “The Constitution’s First Branch—Rediscovering the
Legislative Power.”
1932 IOWA LAW REVIEW [Vol. 105:1931
regulatory policy. A return to reauthorization would also strengthen the
partnership between Congress and the administrative state as well as mitigate
some of the major concerns that have been raised in recent years regarding
Chevron deference.
I.INTRODUCTION ........................................................................... 1932
II.NONDELEGATION AND CON GRESSIONAL INACTION .................... 1938
III.CONVENTIONAL RESPONSES TO NONDELEGATION ..................... 1946
A.DELEGATION IN THE COURTS ................................................. 1946
B.DELEGATION IN CONGRESS..................................................... 1950
IV. REAUTHORIZATION IN THEORY AND IN PRACTICE ...................... 1959
A.TEMPORARY LEGISLATION, SUNSETS, AND
REAUTHORIZATIONS .............................................................. 1960
B.REAUTHORIZATION TODAY .................................................... 1964
V. REAUTHORIZATION AS A TOOL TO ADVANCE
NONDELEGATION VALUES .......................................................... 1974
A.IMPLEMENTATION OF A REGULAR REAUTHORIZATION
REGIME ................................................................................ 1976
B.RESPONSES TO OBJECTIONS .................................................... 1982
C.IMPLICATIONS BEYOND NONDELEGATION ............................... 1989
VI.CONCLUSION .............................................................................. 1993
I. INTRODUCTION
Last Term, in Gundy v. United States, the Supreme Court once again
considered whether a statutory grant of authority to a federal agency or
executive branch official (here, the Attorney General) violates the
nondelegation doctrine.1 Article I of the Constitution commands that “[a]ll
legislative Powers herein granted shall be vested in a Congress of the United
States.”2 The Court has long interpreted Article I as prohibiting Congress
from delegating legislative powers to the other branches of government (or
anyone else).3 It has also held, however, that Congress can delegate discretion
to federal agencies to implement legislation if the legislation provides an
1. Gundy v. United States, 139 S. Ct. 2116 (2019).
2. U.S. CONST. art. I, § 1.
3. See Mistretta v. United States, 488 U.S. 361, 371–72 (1989) (“[W]e long have insisted
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.”
(quoting Field v. Clark, 143 U.S. 649, 692 (1892))).
2020] DELEGATION AND TIME 1933
“intelligible principle”4—“clearly delineat[ing] the general policy, the public
agency which is to apply it, and the boundaries of this delegated authority.”5
And, once again, in Gundy, a majority of the Court rejected the constitutional
challenge, with the plurality concluding that the statutory “delegation easily
passes constitutional muster.”6
Although the nondelegation doctrine technically remains the law of the
land, the Supreme Court has only struck down two (or maybe three) statutory
delegations as unconstitutional—all back in the 1930s.7 Since then, there
have been many unsuccessful challenges, of which Gundy is but the most
recent.8 These nondelegation challenges, like the challenge in Gundy, have
focused almost entirely on the breadth and substance of legislative delegation
and whether it complies with the intelligible principle test.9 In other words,
the judicial inquiry has examined the substantive transfer of lawmaking
authority from Congress to the administrative state.
Gundy, ho wev er, i s al so no tewo rth y bec ause onl y fou r Jus tic es we re w illi ng
to continue to embrace a toothless nondelegation doctrine.10 Justice Alito cast
the fifth and decisive vote because “it would be freakish to single out the
provision at issue here for special treatment.”11 Justice Alito made clear,
however, that “[i]f a majority of this Court were willing to reconsider the
4. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
5. Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).
6. Gundy, 139 S. Ct. at 2121; cf. id. at 2131 (Alito, J., concurring in the judgment)
(“Because I cannot say that the statute lacks a discernable standard that is adequate under the
approach this Court has taken for many years, I vote to affirm.”).
7. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550–51 (1935);
Panama Ref. Co. v. Ryan, 293 U.S. 388, 433 (1935). As Cass Sunstein quipped, “[w]e might say
that the conventional doctrine has had one good year, and 211 bad ones (and counting).” Cass
R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Schechter Poultry and Panama
Refining Co. are the two cases usually cited as the only successful nondelegation doctrin e
challenges, but the Court in Carter v. Carter Coal Co. seemed to invalidate one provision of the
Bituminous Coal Conservation Act on nondelegation grounds in an opinion that struck down
the rest of the law for violating the Commerce Clause. See Carter v. Carter Coal Co., 298 U.S.
238, 311, 323–24 (1936). But see Alexander “Sasha” Volokh, The Shadow Debate over Private
Nondelegation in DOT v. Association of American Railroads, 2014–2015 CATO SUP. CT. REV. 359,
372 (2015) (arguing that “when the Carter Coal Court talks about ‘legislative delegation in its
most obnoxious form,’ it’s much more plausible that this refers to the Due Process Clause”).
8. See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472–76 (2001) (surveying
unsuccessful nondelegation challenges).
9. See Gundy, 139 S. Ct. at 2148 (Gorsuch, J., dissenting) (arguing that the nondelegation
doctrine should not permit Congress to “hand off to the nation’s chief prosecutor the power to
write his own criminal code”).
10. Id. at 2120, 2129–30. Further, as Gary Lawson observes, “Gundy is the first time since
1935 that more than two justices in a case have expressed interest in reviving some substantive
principle against subdelegation of legislative authority.” Gary Lawson, “I’m Leavin’ It (All) up to
You”: Gundy and the (Sort-of) Resur rection of the Subdelegation Doctrine, 2018–2019 CATO SUP. CT.
REV. 31, 33 (2019). Two Justices had expressed such an interest in 1981. See Am. Textile Mfrs.
Inst. v. Donovan, 452 U.S. 490, 543–48 (1981) (Rehnquist, J., dissenting).
11. Gundy, 139 S. Ct. at 2131 (Alito, J., concurring in the judgment).

To continue reading

FREE SIGN UP