INTRODUCTION I. SEPARATION VERSUS DELEGATION A. Separation of Functions B. Delegation: Encroachment's Other Side C. Early Experiences 1. Law 2. Way man v. Southard II. THE "INTELLIGIBLE PRINCIPLE" TEST: DELEGATION AS SCOPE A. Field Test for Delegation B. Hampton's Road to Delegation: An Intelligible Principle? C. The Intelligible Principle Test's (Almost) Open Door D. American Trucking: Nondelegation's End or Wayman's Return? III. American Railroads: From Scope to Separation IV. A Delegation Doctrine for the modern Administrative State A. No Delegation of Vested Power B. Discerning Delegation's Place: Between Naive Formalism and Denying Discretion 181 C. Testing Delegation's Limits: Back to Nature D. Delegation's Limits: Defining Nature 1. Beyond Connection. Defining Legislative Power 2. Rules for Regulation of Society 3. Policy Choices of Major Importance 4. Conceptual Tests and Judicial Discretion 5. Further Margins: Locus and Scope V. CONCLUSION INTRODUCTION
The American Constitution designed structures intended to limit discretionary government power, checking assignments of discretionary power necessary for effective government (something the new Constitution was supposed to improve) by dividing them among different entities and different officials. (1) The national government was granted limited powers; (2) the states retained plenary powers not at odds with national powers; (3) and the "vesting clauses" of Articles I, II, and III grant the entirety of the legislative, executive, and judicial powers of the national government to specific bodies and officers. (4) That set of assignments long has been understood to preclude reassignment of those powers to others. Congress cannot, for example, claim for itself part of the President's power to appoint officers of the United States (5) or to execute the laws, (6) nor can it assign to non-Article III officers the judicial power of the United States. (7)
This allocation of power does not only bar rearrangement of authority by invasion; it also prevents rearrangement via what might appear to be a voluntary surrender of authority. For example, the Constitution's structure cannot be squared with Congress giving its own peculiar authority--the legislative powers granted in the Constitution--to any other body. (8) This conclusion follows from both the language of the document and the understanding of the people framing it that the reasons against altering the allocation of powers are the same regardless of the form of that change.
The delegation doctrine (or nondelegation doctrine), first clearly articulated in Field v. Clark, (9) has been accepted as a common-sense statement of this proposition for more than a century. Nonetheless, judicial application of the doctrine has been sufficiently rare--there are merely two cases in which the Supreme Court has overturned laws on that ground (10)--that many scholars have opined that the doctrine exists as no more than a tautology (11) or that it is simply unenforceable as a practical matter. (12) In other words, despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint.
Recent opinions from two Justices, however, may signal new openness to reconsideration of the Court's apparent reluctance to reject laws that effectively cede legislative authority to executive--or non-executive administrative--officers. Both Justice Samuel Ali to and Justice Clarence Thomas, writing in Department of Transportation v. Association of American Railroads, (13) expressed concern about legislated grants of expansive authority to make rules regulating private conduct. (14) Whether or not these opinions presage a change in the Court's posture respecting delegation, they provide an occasion for reexamining how much the Constitution's division of and limitations on power traditionally assumed to be "legislative" can and should be judicially enforceable.
This article traces the concerns that informed constitutional decisions separating powers along with early laws and judicial decisions respecting the assignment of authority to the executive and judicial branches. Although the difficulty of drawing clear lines among classes of government power has been acknowledged repeatedly, the framers of the Constitution thought divided power was critical to the defense of liberty, and courts found approaches that enforced constitutionally separated powers. (15) The alteration of the delegation doctrine in the late 19th and early 20th Century, however, set the law on a different path, one that gave a binary choice essentially requiring either detailed lawmaking by Congress on all points or judicial acquiescence to extraordinary commitments of discretionary authority for other branches of government to adopt rules governing conduct that should be regulated by legislation, if at all. That choice resolved into periodic statements of fealty to a delegation doctrine coupled with routine acquiescence to authorizations that effectively delegated Congress' legislative power to others.
If the constitutional structure is to be preserved, the delegation doctrine needs realignment. The doctrine should return to its historic roots. It should focus first and foremost on the nature of the authority granted--on whether discretionary authority assigned to another branch is of such importance that it should only be decided by Congress and on whether the authority fits within the set of functions constitutionally committed to that branch. A law that fails this test constitutes an attempted delegation of legislative power instead of a legal authorization for specific exercises of executive or judicial power. Changing the focus from the scope to the nature of the authority legally assigned can provide a path to reinvigorating separation of powers protections.
SEPARATION VERSUS DELEGATION
Separation of Functions
The most basic proposition about the U.S. Constitution in the eyes of its framers was its ability to enable effective national government without putting liberty at risk by separating power in different hands. James Madison put the point starkly:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that ... [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, ... may justly be pronounced the very definition of tyranny. (16) The importance of separated powers as a safeguard of liberty was not simply part of a set of considerations that the Constitution's best-known advocates acknowledged. The framers, Madison most of all, repeatedly stressed its place in the constitutional scheme and its centrality to a proper foundation for the nation in other statements made during the national debate over ratification of the Constitution. (17) Madison's Federalist No. 51 is justly renowned for its soaring rhetoric about how different a task constitution-making would be "[i]f men were angels," the role of the people as critical to checking power, and the constitutional design that enabled "[a]mbition ... to counteract ambition." (18) More prosaically, but equally important, Federalist No. 51 declares that the "separate and distinct exercise of the different powers of government ... is admitted on all hands to be essential to the preservation of liberty" and that the "division of the government into separate and distinct departments," together with the division of power between state and national governments, provides a critical protection against usurpation of the rights of the people. (19)
In Federalist 48, Madison went on to add that while separation of the legislative, executive, and judicial powers--placing them in different bodies and different officials' hands--is necessary to protect liberty, it is not sufficient:
... [P]ower is of an encroaching nature, and ... it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. (20) This separation of functions plainly does not contemplate that one branch of government would take over functions assigned to a different branch. Warnings about encroachment of one branch on the powers of another were directed at this end, along with a particular caution about the legislature. In Madison's memorable words, "[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex." (21)
Delegation: Encroachment's Other Side
Equally important, the understanding of separated powers did not permit one branch to assign its functions to another branch. That prospect was not so evident a concern as the intrusion of one branch into the affairs of another over the other's objection. But the framers of the Constitution were well aware of John Locke's warning against delegation of legislative power:
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. (22) The critical point, however, goes beyond Locke's declaration that the people have not consented to a grant of legislative power to others. It also must be understood that the incentives that so obviously made the framers concerned with encroachment apply equally to delegation. The bottom line is that the grant of power from one entity to another is never an act of pure generosity; the grantor invariably...