Judicial Non-delegation, the Inherent-powers Corollary, and Federal Common Law

• Publication year: 2017

Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law

Alexander Volokh Emory University School of Law

JUDICIAL NON-DELEGATION, THE INHERENT-POWERS COROLLARY, AND FEDERAL COMMON LAW

Alexander Volokh^*

Abstract

On paper, the non-delegation doctrine, with its demand that congressional delegations of power be accompanied by an "intelligible principle," looks like it might impose some constraints on Congress's delegations of power. In practice, it looks like it doesn't. But this disconnect isn't as stark as it appears: a longstanding but often ignored branch of the doctrine provides that the intelligible-principle requirement is significantly relaxed, or even dispensed with entirely, when the delegate has independent authority over the subject matter. I call this the "Inherent-Powers Corollary. "

Not only that: even when the delegate lacks independent authority over the subject matter, the intelligible-principle requirement is still relaxed when the subject of the delegation is interlinked with an area where the delegate has independent authority. I call this dubious extension to the Inherent-Powers Corollary the "Interlinking Extension."

The non-delegation doctrine applies to any delegate that Congress may choose, including of course the President—but also including courts. Some recent scholars have pointed this out, and have suggested that this implies the invalidity of several statutes that delegate power to the judiciary. However, they have largely ignored the Corollary and Extension, which also apply to courts. In this Article, I argue that, because courts have many inherent or quasi-inherent powers, the Corollary and Extension save many congressional delegations to courts that one might otherwise think suspect. I also explain how the Corollary and Extension cast light on enduring debates among federal courts scholars over the constitutional foundations of the Erie doctrine and the proper scope of federal common law.

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Introduction...........................................................................................1393

I. The Inherent-Powers Corollary.............................................1397

A. A Long and Distinguished History ......................................... 1398

1. The Early Presidential Cases ........................................... 1398
2. Not Just the President: Indian Tribes and Courts............ 1400
3. Loving and the Current State of the Law ......................... 1402

B. The Limits of the Inherent-Powers Corollary ......................... 1404
C. The Dubious Interlinking Extension ....................................... 1406

II. Judicial Non-Delegation and Inherent Judicial Power......1408

A. The Doctrine Really Does Apply to Courts ............................ 1410
B. Judicial Non-Delegation as a Canon? ................................... 1414
C. Federal Common Law and the Foundations of Erie............... 1420

1. The Non-Statutory Erie Principle ..................................... 1422
2. Statutory Erie .................................................................... 1423

III. RULEMAKING, ADJUDICATION, AND FEDERAL JUDICIAL POWER .... 1425

A. Procedural Rulemaking: An Easy Case? ............................... 1426

1. The Power to Make Rules................................................. 1426
2. The Power to Repeal Procedural Statutes........................ 1427

B. Uniquely Federal Interests ..................................................... 1429

1. Enclaves ............................................................................ 1429
2. The Need to Ignore Delegated Judicial Power ................. 1430
3. Jurisdictional Grants........................................................ 1432

C. Defenses and Similar Statute-Narrowing Doctrines .............. 1434
D. Remedies ................................................................................. 1436
E. Statutory Interpretation .......................................................... 1437

1. Is Ambiguity a Delegation? .............................................. 1438
2. The Problem of Delegated Lawmaking ............................ 1443
3. Some Ambiguous Statutes ................................................. 1446

a. The Armed Career Criminal Act ................................ 1447
b. The Religious Freedom Restoration Act .................... 1449
c. The Alien Tort Statute ................................................ 1451
d. The Sherman Act ........................................................ 1453

Conclusion...............................................................................................1457

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Introduction

We all know the standard theory of the non-delegation doctrine, as it's taught in Administrative Law courses.

The Vesting Clause of Article I, § 1 says that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States."¹ This has been taken to mean Congress can't divest itself of its legislative power² (though this reading isn't obvious³ ). In turn, this principle has been implemented by requiring that Congress, in delegating power, always provide an "intelligible principle" to guide the delegation—this would prevent the delegation of power from becoming a forbidden delegation of legislative power⁴ (though this, too, isn't an obvious construction⁵ ). In other words, Congress must make at least certain hard choices rather than entirely passing responsibility to someone else.

We also know the standard practice of the non-delegation doctrine: Despite the standard theory, pretty much every federal statute nonetheless survives non-delegation review. The non-delegation doctrine is notoriously lax—or should we say it's kind of fictitious? Congress has been allowed to delegate power to agencies using wording like "unduly or unnecessarily complicate[d]" corporate structures and "unfair[] or inequitabl[e] distribut[ions of] voting power,"⁶ "generally fair and equitable" price controls,⁷ and the "public interest."⁸ The last two times a circuit court has tried to apply the non-delegation doctrine strictly,⁹ the Supreme Court has taken a dim view of the effort.¹⁰

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Is this just hypocrisy (or, more charitably, an inability to adequately enforce a fuzzy norm¹¹ )? No, I argue in this Article—or at least not as much as one might think. The reason is that the "intelligible principle" test only describes a subset of non-delegation cases. For at least eighty years, and continuing through modern cases, the Supreme Court has recognized that the requirement of an intelligible principle is relaxed—or dropped entirely—when the delegate already has some inherent power over the subject matter.¹² Thus, for instance, delegations to the President can be virtually (or entirely) standardless when it comes to foreign affairs or national security. My term for this is the "Inherent-Powers Corollary."

There's more to the story than just the Inherent-Powers Corollary. If all that mattered were the presence of a preexisting inherent power in the delegate, one might think that a statute could be upheld under the Corollary only if the delegate could have taken the same actions in the absence of the statute. (In other words, one might think the Inherent-Powers Corollary would have no applicability where the delegate's power to act derives from the statute.) But the cases have consistently taken a broader view: Congress can delegate without an intelligible principle even when the delegate lacks inherent power, as long as the subject matter of the delegation is interlinked with an area where the delegate does have inherent power. My term for this is the "Interlinking Extension" to the Inherent-Powers Corollary.

The Inherent-Powers Corollary is moderately familiar in the literature, but its full power has been imperfectly understood. In the first place, the Interlinking Extension is a subtlety that has gone unremarked. In the second place, many delegations upheld by the Court in what seem like embarrassing applications of the "intelligible principle" theory turn out, on second view, to be justifiable as straightforward applications of the Inherent-Powers Corollary.

I discuss some of these cases below in the context of delegations to the President. But an even more interesting exercise—more interesting because never adequately done—is to see how the Inherent-Powers Corollary can justify a large number of delegations to the judiciary. Non-delegation scholars usually don't mention the judiciary as delegate; some authors flatly state that the non-

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delegation doesn't apply to the judiciary at all;¹³ others argue that it wouldn't make sense if it did, given the exceedingly general standards that courts often implement.¹⁴ But this is quite incorrect: the theory of non-delegation applies to any delegate, including the judiciary, and Supreme Court precedent has long recognized this.¹⁵

Now, one might at first think that seriously applying the non-delegation doctrine to courts might result in the invalidation of huge chunks of legislation, given that Congress routinely demands that courts administer broad and vague statutes. Thus, Andrew Oldham, writing about antitrust but here speaking more generally, writes that "Congress cannot deputize the federal courts—and federal judges cannot accept such congressional delegation—to make standardless policy judgments."¹⁶ Margaret Lemos argues that "the Sherman Act would be a likely candidate for constitutional invalidation" under this view;¹⁷ Eugene Kontorovich argues that a broad reading of the Alien Tort Statute would violate the non-delegation doctrine (as well as the constitutional reservation to Congress of the power to define offenses against the law of nations);¹⁸ and Aaron Nielson argues that the pre-Erie¹⁹ understanding of the Rules of Decision Act likewise violated the doctrine.²⁰

But the Inherent-Powers Corollary shows why that initial view would be...