Resuscitating the non-delegation doctrine: A compromise and an experiment.

• Author: Kritikos, A.J.

TABLE OF CONTENTS I. INTRODUCTION 441 II. LINE-DRAWING CONCERNS, THE MARSHALL TEST, AND FLORIDA 444 A. Federal Non-Delegation Test 445 1. The Marshall Test and Schoenbrod's Definition of Legislative Power 449 2. Contingent Legislation Under the Marshall Test 449 3. Beyond Contingent Legislation 450 4. Panama Refining and Schechter Poultry 451 5. No Limits 454 6. Rehnquist's Attempted Revival and Thomas's 456 Progression B. Florida's Non-Delegation Test 458 1. Askew 458 2. Schiavo 462 3. Imhotep-Nguzo 463 C. Other States 466 III. COMPLEX AND TECHNICAL ISSUES IN A CHANGING SOCIETY 468 A. Avatar 470 B. southern Alliance 472 C. Not a Death Knell 474 D. Agency Efficiency 474 IV. FLORIDA'S STEP IN THE RIGHT DIRECTION 475 V. A FEDERAL TOEHOLD: NON-DELEGATION IN THE CRIMINAL CONTEXT 477 A. Florida's Criminal Delegation Enforcement 478 B. Carter and Nichols 479 VI. CONCLUSION 481 I. INTRODUCTION

At the end of the nineteenth century, the U.S. Supreme Court declared: "That [C]ongress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution." (1) But then came the birth of the administrative state amidst the Great Depression--ushering in a new understanding of the separation of powers that emphasized functionalism over formalism. Accordingly, it has been over eight decades since the U.S. Supreme Court found a violation of the non-delegation doctrine, despite countless challenges to statutes that have included almost limitless delegations. Outside of scholarly debate, that universally recognized principle vital to constitutional government seems to be a dead letter.

An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it. First, the Court has stated that there is an insurmountable line-drawing problem that occurs when delineating a permissible delegation from an impermissible one. (2) And second, the Court has asserted that the non-delegation doctrine cannot be seriously enforced in a complex, modern society without disastrous consequences. (3) I argue that both of those problems are real but can be mitigated by a non-delegation test that emphasizes the primacy of the legislature in lawmaking, and there are two existing models of a better way that the Court can choose from. A compromise solution pioneered by the civil non-delegation jurisprudence of Florida shows that the doctrine can be flexible while still limiting vacuous delegations. (4) Alternatively, Florida's criminal non-delegation jurisprudence and opinions by two leading federal jurists promote strict formalism when the delegation at issue provides the executive with authority to define a crime. (5) This latter approach allows for an experiment by federal courts that would limit to the criminal context renewed non-delegation enforcement.

In Part II, I address the line-drawing problem the U.S. Supreme Court has backed itself into by formulating a toothless non-delegation test. Currently, the Court simply asks whether there is an intelligible principle underlying the delegation. (6) Unsurprisingly, no statutes fail that low bar, and it is a bar that the Court has lowered even further over time. The historical non-delegation test devised by Chief Justice John Marshall was used for over a century in federal jurisprudence before being abandoned for the intelligible principle test. (7) While the Marshall test does not wholly resolve line-drawing problems, some states have adopted and applied the Marshall test with considerable success, showing that the line-drawing concerns are overblown. (8) Florida, in particular, has been able to consistently apply the non-delegation doctrine by asking whether a given statute makes the fundamental and primary policy decision, (9) which is similar to the Marshall test's inquiry. California, on the other hand, adopted the Marshall test but has applied it erroneously and undermined the rule of law justifications for enforcing the non-delegation doctrine. (10)

Most of the recent federal delegation jurisprudence contends that it is impractical to enforce the non-delegation doctrine in a complex society. Part III argues that the problem with this line of reasoning is that the Court presupposes that the non-delegation doctrine must be administered in one rigid way in all contexts. I rely on Florida case law to show that assumption is false. As noted above, Florida courts have adopted a sliding scale approach in their non-delegation jurisprudence, so where a statute deals with very technical issues, like cost-recovery mechanisms for nuclear power plants, the courts give the legislature more leeway to delegate broadly. (11) Furthermore, the test can become more stringent in some contexts, such as when a legislature delegates crime-making authority to an executive agency. The Marshall test, as applied and fleshed out in Florida, thus proves to be rather elastic.

Florida's imperfect application of the Marshall test raises some genuine problems. In Part IV, I respond to the notion that Florida's version of the Marshall test gives judges too much discretion. Though I recognize that Florida's non-delegation jurisprudence has flaws, it is nevertheless a step in the right direction and superior to the current federal approach. Florida's approach at least takes care of easy cases and thus provides some constraint on the most vacuous delegations.

In Part V, I discuss Florida's non-delegation enforcement in the criminal context, as well as opinions by Judge Jeff Sutton and then-Judge Neil Gorsuch on delegations to the executive to define crimes. Florida case law adheres to strict formalism for delegations involving criminal penalties, and Judge Sutton and Justice Gorsuch echo that approach. Though there are benefits to following the Florida civil enforcement approach as a compromise between formalists and functionalists, I conclude that federal courts should adopt the approach of Florida, Judge Sutton, and Justice Gorusch for delegations involving defining crimes. The importance of getting the law right and acting on sure-footed authority is at its peak when the State takes away life or liberty, so enforcing the non-delegation doctrine to protect criminal defendants is worth the effort of fleshing out the doctrine. But only enforcing the non-delegation doctrine in the criminal context would also provide federal courts with an experiment, allowing the judiciary to develop law in a limited setting before either expanding it to civil delegations also or confining it to just the criminal sphere. Ultimately, state constitutional law and the opinions of a couple of thoughtful federal jurists provide interesting models for how the federal judiciary can revitalize non-delegation enforcement. Only the U.S. Supreme Court has the power to reverse course and return to a faithful adherence of our government's commitment to the separation of powers.

2. LINE-DRAWING CONCERNS, THE MARSHALL TEST, AND FLORIDA

   In Mistretta, Justice Antonin Scalia argued in dissent that "while the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system, it is not an element readily enforceable by the courts." (12) Justice Scalia, writing for the majority in a subsequent case, reiterated that point, stating, "[W]e have 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" (13) In essence, the Court is acknowledging that it is too difficult to draw a clear line delineating permissible from impermissible delegations. As described by one scholar, the Court refuses to "tackle the line-drawing problem" inherent in the non-delegation doctrine for fear of "unleashing a parade of horribles." (14)

   The Court's fears are legitimate but overblown. The Court demands both too much and too little from the non-delegation doctrine. The demand is too much when the Court implicitly assumes that it can draw a line in one case and have it hold in every case thereafter. But that would be impossible, and that expectation is not used to defeat enforcement in other contexts. As the Chief Justice noted in NFIB v. Sebelius, for example, "We have no need to fix a line ....It is enough for today that wherever that line may be, this statute is surely beyond it." (15) The Court demands too little, though, when it wholly defers to Congress to decide how much of its legislative power it can relinquish to another branch, especially to the executive.

   Both errors can be resolved by looking to federal non-delegation history and to Florida's non-delegation jurisprudence. Federal non-delegation history reveals that Chief Justice Marshall formulated a workable and enforceable test, but the test was later abandoned for the misunderstood intelligible principle formula. (16) Then-Justice Rehnquist sought to revive the non-delegation doctrine after it had been long dormant, advocating in the process for a test comparable to the Marshall test. (17) Florida state courts have also utilized a test functionally equivalent to the Marshall test in enforcing the non-delegation doctrine. (18)

   Developing a good test is the first step in achieving consistent outcomes for delegation challenges. Therefore, the following section focuses on the tests that the U.S. Supreme Court and Florida courts have utilized. As discussed below, Florida has developed a fairly stable non-delegation jurisprudence because its test is harder to manipulate than the intelligible principle test. While the Florida Supreme Court's test is...