DIMENSIONS OF DELEGATION.

• Author: Coglianese, Cary

The nondelegation doctrine has mattered more in U.S. constitutional history for what courts have not done with it than for what they have. This doctrine, which ostensibly constrains Congress in its ability to authorize executive officers to make rules, has been fundamental to the development of the modern administrative state mainly because the Supreme Court has almost never invoked it to invalidate congressional legislation authorizing rulemaking by executive officers. With the exception of the Court's disapproval of the National Industrial Recovery Act in 1935, (1) the Court has rejected all other challenges to legislation based on the nondelegation doctrine, (2) leading many judges and scholars to surmise that the doctrine is "dead," "moribund," or a "failure." (3)

As a formal matter, the nondelegation doctrine is widely thought to require that any statute that authorizes agencies to make legally binding rules must contain an "intelligible principle" to cabin the exercise of governmental authority. (4) But for decades the Supreme Court has "upheld, without exception, delegations under standards phrased in sweeping terms." (5) Among the approved statutory authorizations have been those accompanied by principles such as those of "public convenience, interest, or necessity," which seem far from intelligible in any ordinary sense. (6) As a result, administrative agencies today possess a considerable accumulation of rulemaking authority. (7)

Recognition of the sweeping quality of the rulemaking authorizations approved by the Supreme Court, however, does not necessarily mean that the nondelegation doctrine has died, nor that the Court has failed to apply it faithfully, as some scholars and judges assert. (8) On the contrary, the Court continues to affirm the existence of the nondelegation doctrine. Moreover, it has also applied it with greater consistency and coherence than generally recognized. But this coherence only becomes evident in light of what I call the "dimensionality" of authority: that is, not only the degree of constraint that legislation places on the exercise of governmental authority, as called for by the intelligible principle test, but also the extent of the power authorized.

My principal aim in this Article is positive and conceptual. After introducing the core question underlying the nondelegation doctrine and explaining how the intelligible principle test is supposed to answer that question, I show that the dominant emphasis on intelligibility only gives rise to a further doctrinal puzzle: How can the nondelegation doctrine still exist when the Court over decades has approved so many pieces of legislation with fairly unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the intelligible principle, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court's application of the nondelegation doctrine.

Simplifying, I illustrate how the nondelegation doctrine, properly understood, concerns both the degree of discretion afforded to the holder of lawmaking power and the extent of the underlying power itself. I also show how a textual commitment to the Constitution's Vesting Clause calls for judges to consider how lawmaking authority conferred by a statute compares with a specific legislative power "herein granted" in Article I. The proper test for the nondelegation doctrine, I thus explain, calls upon a judge to invalidate only those statutory grants of lawmaking authority that approximate one of Congress's enumerated powers along both the discretion and power dimensions.

So understood, the nondelegation doctrine remains alive, and is more manageable and coherent too, even if it has almost never been invoked to strike down legislation authorizing lawmaking by executive officers. Its infrequent use to invalidate legislation-even when these laws impose minimal decisionmaking constraint-is not a function of judicial confusion or of the Supreme Court's abandonment of the doctrine. It is instead a function of the doctrine itself being grounded in more than just an intelligible principle test-and of the fact that legislation only infrequently seeks to effectuate grants of authority that reach the extremes on both dimensions of delegation.

1. THE NONDELEGATION ISSUE

   The Constitution expressly acknowledges that the U.S. government comprises executive departments and officers-and, by extension, it acknowledges that these departments and officers possess discretion. (9) But the text and structure of the Constitution also places primacy on Congress as the source of legislative authority: "All legislative Powers herein granted shall be vested in a Congress of the United States." (10) The Supreme Court has long recognized that this Vesting Clause contained in Article I, Section l means that Congress may not transfer its legislative powers to another governmental body or official. (11) If Congress were to transfer its legislative powers, then it could, by itself, override the Constitution's express scheme for bicameralism and presentment in lawmaking-not to mention the prescribed means for amending the Constitution.

   Yet these long-settled doctrinal propositions do not lead to any automatic conclusion about the authorization of rulemaking by executive officials. The potential for the exercise of rulemaking authority by departments and executive officers is not expressly addressed in the text of the Constitution. Is administrative rulemaking a species of the "legislative powers herein granted" that Article I, Section 1 vests in Congress? The Constitution does not explicitly say. It does, though, authorize Congress to adopt all laws that are "necessary and proper" to carry out its powers. Congress has deemed it to be "necessary" from the earliest days of the Republic to grant other governmental actors authority to establish rules. (12) The Supreme Court has also recognized the necessity of such congressional empowerment. (13)

   Even if necessary, are congressional grants of rulemaking authority also "proper?" Certainly nothing in the Constitution expressly precludes Congress from authorizing the heads of departments to create rules, even though it does impose a series of other clear prohibitions on Congress in Article I, Section 9. (14) But if rulemaking is an Article I "legislative power," then Congress may not permissibly authorize others to exercise it.

   In one sense, rulemaking certainly looks legislative, because it results in binding rules that are fully enforceable as law. These binding rules are even called "legislative rules." (15) Yet despite these similarities in semantics as well as form, rulemaking power is not necessarily the same as a "legislative power," at least not for purposes of the Vesting Clause. (16)

   Administrative rulemaking, after all, can constitute a type of executive power. Undeniably, executive officers responsible for implementing legislation must often create rules to carry out their duties. (17) Even one of the "purest" of executive functions-the delivery of mail-depends on a postmaster's power to create binding rules. (18) Congress has recognized the need for administrators to make rules by repeatedly authorizing executive officials to make them in the course of carrying out their executive responsibilities. (19)

   The Court thus has had to reconcile two seemingly competing propositions: first, that Article I's vesting of legislative powers in Congress does not permit Congress to transfer those powers to another entity; and, second, that Congress may (and frequently does) authorize rulemaking by the President or administrative agencies. The judicial challenge has been to distinguish Congress's permissible authorizations of executive authority to make rules from any impermissible delegations of legislative powers vested in Congress by Article I. That is the very issue that the nondelegation doctrine seeks to address, drawing the line between permissible and impermissible grants of lawmaking authority by Congress to executive officers. (20) When a grant to executive officers accords with the nondelegation doctrine, it will be deemed, by definition, a grant of constitutionally permissible rulemaking authority-an executive power-not the transfer of a legislative power vested in Congress.

2. THE INTELLIGIBLE PRINCIPLE TEST

   To determine the permissibility of a grant of lawmaking authority to executive officers, the Supreme Court has long invoked the intelligible principle test. (21) Under this test, a grant of lawmaking authority will not be deemed tantamount to "legislative power" vested in Congress if an executive officer's discretion in exercising that authority is sufficiently constrained by some fairly cognizable criterion.

   Congress's Article I legislative powers are, after all, virtually unconstrained in terms of any decisionmaking criterion that Congress must follow. The Constitution does provide minimal procedural constraints and substantive limits, such as those in Article I, Section 9 or in the Bill of Rights. Yet in exercising its enumerated powers in Article I, Congress is not constrained by an additional principle telling it the basis on which it must decide whether or how to exercise those powers, such as when or how it can regulate interstate commerce. Indeed, in most cases the justification for, or basis of, Congress's exercise of its legislative power must simply meet an extremely minimal threshold of rationality. As long as government lawyers later can provide a court with some reason to justify a piece of legislation, it will pass muster under a rational basis standard that some commentators consider to be effectively no standard at all. (22)

   By contrast, when...