The new private-regulation skepticism: due process, non-delegation, and antitrust challenges.

Author:Volokh, Alexander
Position:III. Non-Delegation Doctrine C. Commingling Non-Delegation and Due Process 2. The Carter Coal Puzzle through V. Conclusion, with footnotes, p. 973-1007
 
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  1. The Carter Coal Puzzle

    Whether the D.C. Circuit is correct depends in large part on how to interpret Carter Coal, which is, doctrinally speaking, a confusing case. The quote reproduced earlier is replete with references to "delegation." (238) But it also mentions arbitrariness and denial of "due process." Is it a delegation case or a due process case (or both)?

    By deciding that an intelligible principle couldn't save a private delegation, (239) the D.C. Circuit chose to treat Carter Coal as a non-delegation decision. But, at the same time, the court suggested that the characterization didn't matter: it wrote, in a footnote, that "the distinction evokes scholarly interest," but the parties in this case didn't press the point, and "neither court nor scholar has suggested a change in the label would effect a change in the inquiry." (240) But this is quite wrong. Labels don't always matter, though in this case, non-delegation and due process doctrines have quite different implications.

    First--as a matter of doctrine--a non-delegation holding only applies against federal delegations while a due process holding applies against the states as well. (241) Admittedly, this wouldn't change the result in the Amtrak case, which concerned a federal delegation; but making the basis clear would help litigants in future cases of state delegation. Nondelegation cases have their particular "intelligible principle" doctrine, while due process cases have their own separate doctrine involving Washington ex rel. Seattle Title Trust Co. v. Robergev (242) Mathews v. Eldredge, (243) Board of Regents v. Roth, (244) and so on. Thus, treating the doctrine of private delegations as a unitary entity rooted in both the Vesting Clause and the Due Process Clause needlessly raises questions that could be avoided if the doctrinal basis were clear. For instance, must all nondelegation cases import due process case law? Must cases involving federal delegations (where both clauses apply) proceed identically with cases involving state delegation (where only one clause applies)?

    Second, plaintiffs in cases involving federal delegation would prefer to win on a due process theory rather than on a non-delegation theory. A due process victory can give rise to a damages claim under Bivens against the federal actors responsible for the violation, (245) while Bivens has never been applied to non-delegation doctrine. (246)

    Third--as a matter of realpolitik--given the widespread perception that non-delegation doctrine is mostly dead (247) while due process is used constantly, a theory grounded in due process is probably more likely to be used.

    Fourth--as a matter of convenience--a due process approach would have the advantage of being able to use the existing holding of Lebron that Amtrak is a state actor for constitutional rights purposes, rather than having to invent a new ad hoc test to make Amtrak private for non-delegation purposes. (248)

    Finally, and most fundamentally--as a jurisprudential matter, even putting aside pragmatic concerns and assuming away all cases involving state delegation--the Due Process Clause and non-delegation doctrine serve quite different purposes. Non-delegation doctrine is structural and seeks to ensure that Congress makes the important decisions. Due process, on the other hand, is all about fairness. Fairness and structural boundaries may be related, but not in any necessary way.

    Consider, for instance, Whitman v. American Trucking Ass'ns, Inc., (249) where the Supreme Court considered a non-delegation challenge to a provision of the Clean Air Act. (250) Earlier, the D.C. Circuit had agreed with the challengers that the delegation of regulatory authority to the EPA lacked an intelligible principle. (251) Nonetheless, it had given the EPA a chance to cure the overbreadth of the delegation by adopting a limiting construction. (252) The D.C. Circuit's approach had been suggested by administrative law scholar Kenneth Culp Davis, who argued that the goal of non-delegation doctrine should be to protect against "arbitrariness" and "uncontrolled discretionary power," and that administrative safeguards could fulfill this purpose as well as statutory language. (253)

    No way, said the Supreme Court: If Congress has delegated too broadly, separation of powers has already been breached. (254) The EPA's trying to adopt the limiting construction would itself be a forbidden exercise of regulatory power. (255) But note that, under the Davis theory, there would be no unfairness: everyone will be on notice as to the precise conduct required or prohibited, and everyone will have had an opportunity to comment under the Administrative Procedure Act. (256) So presumably, if the limiting regulations were adopted, a due process challenge would, and should, fail.

    A violation of non-delegation doctrine thus needn't violate due process. The same is true in reverse: If Congress passes a very specific statute allowing welfare benefits to be withdrawn without any process, presumably due process will be violated (257) but there will be no impermissible delegation.

    Not that non-delegation doctrine and due process should never talk to each other. As noted above, the presence of procedures has sometimes been held to prevent a violation of nondelegation doctrine. (258) This is still good law after American Trucking, as long as these procedures aren't made up by the recipient of the overbroad delegation. APA procedures or the availability of statutory or constitutional judicial review really do narrow a delegation--in the case of APA procedures, Congress made some of the important decisions in 1946, and in the case of constitutional review, Congress legislated against the background of decisions that were made in, say, 1791 or 1868 and that are now out of the delegate's hands. The availability of these procedures will no doubt also be relevant to a due process inquiry. So the doctrines aren't entirely unrelated. Moreover, to the extent certain procedures are unavailable against the government (for example, the APA, which governs only agencies, (259) or Bill of Rights protections, which often don't apply against private actors (260)), non-delegation doctrine--just like due process--might end up applying differently against public and private parties even though the inquiry is the same. (261)

    Nonetheless, the doctrines should still be kept distinct as an analytic matter. The procedures that save a delegation from overbreadth are the sorts that constrain a delegate's discretion, for instance by enforcing substantive rationality. One example might be "hard look" review under the APA. (262) The procedures that save a delegation from violating due process, on the other hand, are the sorts that ensure fair treatment for the affected party, for instance by minimizing bias or by ensuring that the three-part Mathews v. Eldridge balancing test (263) is met--one example might be the APA procedures for formal adjudication. (264)

    Having established that the label matters, an important question is whether the Carter Coal holding (265) is best thought of as a non-delegation or due process decision. The Supreme Court's references to "delegation" aren't very probative. Merely saying the word "delegation" isn't enough to invoke non-delegation doctrine. Delegations can be unconstitutional for many reasons. This Article has discussed many cases as being about private delegations even though (as state cases) they were unambiguously about due process. (266) One can argue that Congress can't constitutionally delegate a "private attorney general" power to qui tarn plaintiffs, either on standing grounds (267) or on Appointments Clause grounds; (268) or, one can argue that delegation to religious groups violates the Establishment Clause. (269) One can thus speak of "delegations" and call them unconstitutional without implying that the case has anything to do with non-delegation doctrine as discussed in Panama Refining or Schechter Poultry. (270)

    Slightly more probative is the opinion's citation of Schechter Poultry, which is indisputably a non-delegation case. (271) I say "slightly" because mere citation isn't a jurisprudential argument. That citation is immediately followed by citations to Eubank and Roberge, which are due process cases. (272) As I mentioned above in the context of Currin v. Wallace (a nondelegation case that cites Roberge, a due process case, as well as Carter Coal), (273) perhaps this "commingling" of doctrines is a sign of sloppiness, (274) or maybe it's a sign that the Supreme Court thought private delegations automatically raise due process issues while public delegations don't. Or perhaps this is reading too much into a mere citation.

    One could--on the basis of the Schechter Poultry citation--call Carter Coal both a non-delegation decision and a due process decision. (275) Some venerable commentators take this route and characterize Carter Coal in both ways. In 1971, dissenting in McGautha v. California, (276) Justice Brennan characterized nondelegation doctrine as having "roots both in ... separation of powers ... and in the Due Process Clause"--here citing Carter Coal (277)--and stated that, as a due process doctrine, it applied to the states. (278) A little bit later, Justice Thurgood Marshall agreed that Carter Coal was (at least) a non-delegation case: "The last time that the Court relied on Schechter Poultry was in [Carter Coal]." (279) Paul Verkuil explicitly writes that the Carter Coal Court "held the delegation arbitrary both under Article I of the Constitution and the Due Process Clause." (280)

    The non-delegation rationale wouldn't be crazy: Entrusting a decision entirely to the unreviewable and unguided discretion of private parties is the opposite of having an "intelligible principle." But then the Court wouldn't need to explicitly use the fact that the delegates were private. (281) So even if Carter Coal were labeled a non-delegation...

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