The Nondelegation Doctrine After Whitman v. American Trucking Associations: Constitutional Precedent Breathes a Sigh of Relief

• Publication year: 2010

The Nondelegation Doctrine After Whitman V. American Trucking Associations: Constitutional Precedent Breathes a Sigh of Relief

Darren Summerville

"Now where is that rudderless boat? Let it be one of our first purposes to discover. With the first glimpse we obtain of it, the dawn of our success shall begin. This boat shall guide us, with a rapidity which will surprise even ourselves . . . ." Edgar Allan Poe, The Mystery of Marie Roget (1850)

Introduction

Midway through the United States Supreme Court's 2000 Term, the Court announced its decision in Whitman v. American Trucking Associations,[1] marking the most explicit foray into the constitutional "nondelegation doctrine" in several years.[2] The decision came in the wake of a controversial opinion by the Circuit Court of Appeals for the District of Columbia.[3]

Early in 1999, the D.C. Circuit Court took a step toward reviving the long-dormant nondelegation doctrine when it ruled that the Environmental Protection Agency's (EPA's) interpretation of the Clean Air Act (CAA)[4] represented an unconstitutional delegation of legislative power. In American Trucking,[5] a divided court rejected long-standing EPA procedures for setting National Ambient Air Quality Standards (NAAQS) for ozone (O₃) and particulate matter (PM), citing the lack of an "intelligible principle" to guide discretionary decision making.[6] The court took issue with the scope of the EPA's rulemaking authority,[7] proclaiming that the agency's procedures in revising the NAAQS were based upon mere "intuitive proposition[s]" that allowed wholly discretionary line-drawing.[8] The American Trucking court resolved the nondelegation matter in a novel fashion,[9] remanding the issue for consideration to the EPA to see if the agency itself could discern an intelligible principle that would justify long-enshrined rulemaking procedures.[10] The decision contained elements of what may be termed the "classic" nondelegation doctrine analysis[11] as well as a not-so-subtle suggestion that courts should examine agency implementation of a congressional grant through a new nondelegation prism.[12]

The implications of the American Trucking decision were potentially enormous on both pragmatic and theoretical grounds. Pragmatically, the NAAQS are the centerpiece of the CAA and function as the mechanism to protect the public from the deleterious effects of airborne pollutants.[13] Numerous other environmental statutes entrusted to the EPA would also likely have been at risk if the agency's rulemaking structure were held constitutionally infirm.[14] Other agency decisions outside the environmental realm could also be challenged, had the Supreme Court sustained the court of appeals' logic.[15] Theoretically, the D.C. Circuit's championing of the so-called new nondelegation doctrine presaged a shift away from typical judicial deference to statutory grants of agency authority.[16]

The EPA's inevitable response to the American Trucking decision was a petition for certiorari to the United States Supreme Court;[17] the Court granted the petition for Browner v. American Trucking Associations on May 22, 2000.[18] The Court heard oral argument in Browner on November 7, 2000, after examining party briefs and copious amici contributions.[19] The Supreme Court announced its unanimous decision to reverse the lower court on February 27, 2001.[20]

The Court rejected the American Trucking court's interpretation of the nondelegation doctrine in summary fashion; instead, the Court held that the CAA provision at issue was "well within" the proscriptions of allowed congressional delegations.[21] In so holding, the Court adopted the reasoning of decades of unbroken precedent that upheld broad congressional delegations of power.[22] What is abundantly clear from the succinct nondelegation portion of the Whitman opinion is that the emerging framework of nondelegation analysis espoused by the American Trucking court has yet to find favor within the Court. The Supreme Court categorically indicated that the relevant portions of the CAA provided a particularly poor vehicle to recalibrate the scope of the nondelegation doctrine.[23]

Although the Supreme Court had recently decided several nondelegation doctrine cases,[24] Whitman was a golden opportunity for the Court to better outline the ambiguous contours of the nondelegation doctrine. Especially under the complex machinations of the CAA, the Court seemingly had ample legislative history, administrative regulations, and other judicial tools to clarify the proper role of congressional delegations within a system of workable government. This Note will examine the Court's treatment of the nondelegation doctrine issues in the case and suggest that the Supreme Court, though reaching the proper outcome regarding congressional delegation, failed to delineate appropriate guidelines for what constitutes a core constitutional doctrine.

Part I of this Note outlines a brief history of the nondelegation doctrine, including the evolving Supreme Court view of the purposes of the analytical framework for congressional delegations of legislative power. Part II examines the emerging "new" nondelegation framework as espoused by influential past D.C. Circuit opinions and legal commentators. Part III examines the legislative and administrative requirements that limit the EPA's discretion within the CAA. Part IV examines the American Trucking decision in light of both the classic and the emerging nondelegation frameworks. Given that background material, Part V reviews the Supreme Court treatment of the nondelegation issue in Whitman. Part VI suggests that the Whitman nondelegation holding was the correct one, as the EPA's rulemaking authority was indeed well within the permissible constitutional parameters for congressional delegation under the CAA. Part VI also outlines the shortcomings of the Whitman Court's analytical approach to the nondelegation issues. This Note concludes that the nondelegation doctrine remains intact after the Whitman decision, albeit as a virtually toothless method of reigning in excessive legislative delegations.

I. Evolution of the Nondelegation Doctrine: History, Purpose, and Status

A. History of the Nondelegation Doctrine

The nondelegation doctrine has its roots in Article 1, Section 1 of the United States Constitution, which provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States."[25] The basis for judicial analysis of the doctrine lies in classic separation of powers principles; the legislative branch cannot legitimately delegate legislative power to another coordinate branch.[26] The United States Supreme Court has had many occasions to apply this minimal textual guidance to claims of excessive congressional delegation of legislative power to another branch.[27] Early decisions promoted executive branch fact-finding as a natural accompaniment to congressional action; in essence, Congress had promulgated law circumscribing fundamental choices and left daily application of the law to executive branch actors.[28] The practical effect of further nondelegation decisions was to liberally expand Congress' ability to delegate to administrative agencies.[29] At the heart of the broad deference granted to Congress was the pragmatic view that Congress' ability to respond to complex, rapidly changing issues required delegations to flexible, specialized agencies.[30]

The Supreme Court routinely approved congressional delegations to both coordinate branches and administrative agencies until the politically turbulent New Deal era.[31] In just over five months, the Supreme Court invalidated two separate sections of the National Industrial Recovery Act (NIRA).[32] Stressing that delegated power without limits or statutory guidance threatened to erode the protections of individual rights under a separation of powers analysis, the Schechter Court ominously warned of delegated power "unconfined and vagrant."[33]

Despite the Court's concern over unguided congressional delegations, the Court has not invalidated a provision of any federal statute on strict nondelegation grounds since the 1935 decisions. Ever-broader statutes passed muster under the post-New Deal delegation decisions, as the Supreme Court embraced a prudential view of Congress' role in making important social choices.[34] As to discretionary agency decisions, the Court generally acquiesced to quite vague delegations; it had "no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework."[35] Indeed, the Court approved some delegations based on authorizing language remarkably similar to that challenged in American Trucking; for example, the Court has outlined that "one cannot plausibly argue that [an] ‘imminent hazard to the public safety' standard is not an intelligible principle."[36] As is commonly observed, the only Supreme Court cases that ever invalidated any provisions of federal statutes under a classic nondelegation framework were decided in 1935; or, more bluntly, the nondelegation doctrine has experienced one good year and over two hundred bad ones.[37] Justice Scalia summarized the Court's approach most adequately in Mistretta, when he observed: "[w]hat legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a ‘public interest' standard?"[38]

B. Purposes of the Nondelegation Doctrine

At the heart of the judiciary's concern with unbounded congressional delegations of authority is the fear that decisions of major social import will be made by agencies that are less responsive or less representative than Congress.[39] Additionally, judicial limits on vague...