Nondelegation for the Delegators.

• Author: Adler, Jonathan H.
• Position: REGULATORY REFORM

Congress could limit delegation and enhance accountability ifit wanted to. Here's how.

In 1935, Justice Benjamin Cardozo complained of "delegation running riot." Since then, it has only expanded in scope and scale as Congress has, time and again, delegated to administrative agencies the authority to draft, develop, and deploy regulatory regimes governing nearly all aspects of economic life in America. Might this be about to change?

For the first time since Cardozo's complaint, it appears a majority of justices on the U.S. Supreme Court are prepared to reconsider the limits on congressional delegation of lawmaking authority to administrative agencies. Although the Court has not invalidated a federal statute on nondelegation grounds in over 80 years, it has opened the door to new nondelegation challenges.

In June 2019, in Gundy v. United States, the Court considered a nondelegation challenge to the Sex Offender Registration and Notification Act (SORNA), which authorized the U.S. attorney general to determine whether the act's requirements applied to individuals who committed qualifying offenses prior to SORNA's enactment. In the end, SORNA survived, as the Court majority was unwilling to declare that the grant of authority to the attorney general constituted an unlawful delegation of power, but Gundy revealed substantial discomfort with the extent to which the Court has allowed delegation to proliferate.

Chief Justice John Roberts and Justices Neil Gorsuch and Clarence Thomas dissented in Gundy and called for aggressive judicial enforcement of limits on Congress's ability to delegate legislative power. Justice Samuel Alito voted to uphold Gundy largely because he did not want nondelegation concerns to apply disproportionately in criminal cases. He wrote a separate concurrence expressing his willingness to reconsider constitutional limits on delegation in an appropriate case.

Justice Brett Kavanaugh did not participate in Gundy, as he had not joined the Court until after the case was argued. But he has since affirmed that he, too, believes nondelegation concerns could "warrant further consideration in future cases." If each justice is to be taken at his word, that would indicate a majority of the Court is open to taming legislative delegation.

Yet, reconsideration of the nondelegation doctrine may not mean much. If the Court's practice with other revived constitutional doctrines is any guide, it may take more to curb delegation's reach. In 1995, a Supreme Court majority announced its intent to police the limits of Congress's Commerce Power, and yet few federal laws have seen their reach constrained. New and unprecedented assertions of federal power have been turned away, but the rest of the U.S. Code has been left intact. In much the same way, a nondelegation revival may target newly enacted outliers without doing much at all to curb those delegations that are already on the books. If delegation is to be curbed, it may have to be stopped at the source: Congress itself.

DELEGATION AND TIME

Delegation lies at the foundation of the modern administrative state. Federal administrative agencies have no inherent power to issue regulations, administer programs, or enforce federal law. Rather, Congress grants agencies those powers through legislation. In various statutes, Congress has granted agencies the authority to implement--and oftentimes direct--federal policy across a wide range of areas, and this practice of delegation has increased over time.

Congress may well have good reasons to delegate substantial policymaking and implementation to administrative agencies. Among other things, legislators may feel they lack the technical knowledge or expertise possessed by career staff at administrative agencies. It may also be easier to develop coherent policies on complex or controversial matters within a hierarchical structure than in a legislative committee. Agencies may also be able to act with greater speed and dispatch than a bicameral legislature, making them more suited to address urgent problems. At the same time, legislators may use delegation as a way of evading accountability for their actions.

However necessary the practice of delegation, it is not without its costs. Allowing extensive delegation may undermine accountability, entrench policy agendas, and compromise the democratic legitimacy of agency action. As the late legal scholar John Hart Ely observed, the concern with delegation is not necessarily that '"faceless bureaucrats' necessarily do a bad job as our effective legislators." Rather, it is that "they are neither elected nor reelected, and are controlled only spasmodically by officials who are." In this way, broad delegation can be viewed as a threat to deliberative democracy.

Much criticism of unbridled delegation focuses on the volume, range, and expansiveness of the legislature's delegation of authority. Some statutes grant federal agencies the authority to make broad policy decisions with tremendous economic consequences, such as what to set as the acceptable level of air pollution in urban areas or how to regulate emerging telecommunications technologies. Other statutes give agencies minimal constraints on whether to adopt regulatory measures and what policy objectives such measures should pursue.

While most critics have focused on the breadth and scope of delegation, less attention has been paid to the time element. Agencies using their delegated power regularly draw on statutory authority granted many years (or decades) earlier. Agencies quite often rely on long-standing--and even long-dormant--authority when creating new regulations. Rules promulgated by federal agencies in 2020 may be authorized by statutes enacted 30, 40, or 50 years ago, drafted and voted on by legislators who may no longer be alive, let alone still serving their constituents.

This risks undermining the democratic legitimacy of much agency action. Consider that when the Federal Communications Commission first sought to adopt an "open internet" order, it relied on a 1934 statute that...