Legislative delegation, the unitary executive, and the legitimacy of the administrative state.

• Author: Shane, Peter M.
• Position: Separation of Powers in American Constitutionalism

Federalist Society constitutionalists frequently launch two critiques of the modern administrative state. One, the nondelegation critique, challenges the now-customary breadth of legislative delegation to the executive branch. (1) The other, the unitary executive theory, challenges congressional attempts to diffuse executive branch policymaking power at levels below the President. (2) The Emergency Economic Stabilization Act of 2008 (3) is a dramatic target for the first critique. Agencies whose heads are insulated from direct presidential policy control, like the Federal Trade Commission (FTC), (4) are clear targets for the second.

If we focus separately on the government design variables at the heart of each of these critiques, one can imagine four different ways, shown in the table below, in which those variables might shape the administrative state. One axis of the table describes two contending positions on Congress's capacity to structure the allocation of power within the executive branch. That authority could be broad, encompassing significant congressional power to decide who gets to determine matters of administrative policy. Or, following unitary executive theory, Congress's power could be narrow; once Congress vests policymaking discretion in the executive branch, the President has plenary power to command that discretion no matter where Congress formally conferred it. The other axis of the table is Congress's capacity to delegate policymaking power to the executive in the first place. At one pole is current doctrine, under which there is virtually no enforceable limit on legislative delegation. At the other is the strictly policed nondelegation position that Professor Gary Lawson advocates. (5)

The current administrative state shows up in this matrix as the state in which Congress has considerable discretion to structure the exercise of administrative power and virtually unlimited discretion to delegate power to the executive. A world in which Congress's authority over the unitary executive is limited and in which there is a more strictly policed nondelegation doctrine describes the constitutional vision of Professors Lawson and Steven Calabresi. (6) For present purposes, ignore the permutation with a strictly policed nondelegation doctrine but broad congressional discretion to divide up power in the executive branch. If the policymaking discretion of the executive were seriously reduced, Congress might care less about the allocation of intrabranch decision making authority. The final permutation, call it "Scalia Land," is addressed below.

The current administrative state combines wide congressional discretion to delegate regulatory power with considerable discretion to diffuse power throughout the executive branch. Professors Lawson and Calabresi would put us, as it were, in the opposite comer, and Professor Calabresi's frequent collaborator, Professor Saikrishna Prakash, has linked these two elements in his theorizing. (7) That is, Prakash offers an implicit defense of the unitary executive against imperial presidency charges by pointing out that the policy power of the unitary executive is really subject to Congress's control. (8) It logically follows that because the President's domestic powers depend almost entirely on the authorities Congress chooses to give him, Congress can forestall presidential imperialism simply by legislating with a tighter hand.

There is something normatively attractive about the Calabresi-Lawson vision. If delegations were narrow, following Professor Lawson's version of the delegation doctrine, (9) the risk of overconcentration of power in the hands of one man or woman could well diminish. The problem is that Professor Lawson's vision will never be implemented. The idea of a vigorous legislative nondelegation doctrine is a bipartisan nonstarter. The...