"The people surrender nothing": social compact theory, republicanism, and the modern administrative state.

• Author: Postell, Joseph
• Position: Symposium: A Future Without the Administrative State? Exploring the Administrative State

The famous administrative law scholar and professor, Louis Jaffe, wrote that "delegation of 'lawmaking' power is the dynamo of modern government." (1) The various agencies of the modern administrative state are routinely granted broad mandates to enact rules that carry the force of law. (2) This fact has generated a constitutional controversy for the past several decades, in which it is asserted that only Congress, and not regulatory agencies, may exercise legislative powers. (3) The importance of this controversy to the modern administrative state is clear: if the Constitution forbids Congress from delegating legislative power to administrative agencies, and agencies today exercise legislative power, much (but not all) of the modern administrative state is unconstitutional.

Scholars on both sides of the issue recognize the ramifications. Even though the Supreme Court has shown little interest in reopening the debate over the delegation of legislative power to administrative agencies, scholars have published dozens of articles on the nondelegation doctrine in recent years. (4) If modern history is any indication, there is little prospect that attention to the nondelegation doctrine in scholarship and literature will subside in the near future.

Yet important and inaccurate myths about the nondelegation doctrine still prevail in spite of this ongoing scholarly attention. This Article aims to establish the proper foundation for the nondelegation principle. While this principle is typically linked to the theory of the separation of powers, the true foundation of the nondelegation principle is the idea of the social compact and the related theory of republican government. To the extent that the modern administrative state transfers legislative powers to administrative officers who are not vested with those powers by the people through their Constitution, and who are not elected by the people either directly or indirectly, it violates these cardinal principles of American constitutionalism.

The Article's argument proceeds in four parts. Part I provides an overview of the scholarly arguments in defense of the nondelegation doctrine. It describes three arguments in favor of the nondelegation doctrine: the separation of powers, political accountability, and constitutional text. Part II argues that social compact theory--not separation of powers, accountability, or constitutional text--is the true foundation of the nondelegation principle. Part III connects the theory of the social compact to the basic principles of republican government, which require that legislative powers are exercised by the representatives of the people chosen through elections. Part IV concludes by tentatively discussing the implications of this argument for contemporary administrative government.

1. COMPETING FOUNDATIONS OF THE NONDELEGATION DOCTRINE

   Defenders of the nondelegation doctrine generally offer one of three arguments: the separation of powers, public accountability, or the text of the U.S. Constitution. (5) The most common argument invokes the separation of powers. (6) This position holds that Congress cannot delegate power to administrative agencies because the legislative, executive, and judicial powers must remain separate. (7) It is often argued that delegating legislative power to administrative agencies, which typically exercise executive and sometimes judicial powers, violates this principle. (8)

   Examples of the separation of powers argument abound. For instance, Randolph May argues that "the public interest standard" typically inserted in regulatory statutes "is inconsistent with the separation of powers principles vindicated in our constitutional system through the nondelegation doctrine." (9) Similarly, Travis Mallen writes, "The nondelegation doctrine is a function of separation of powers." (10) Mallen's defense of the doctrine rests on what he calls the principle of "institutional competence," (11) which argues that only the legislative branch is competent to legislate, and delegation of power "grants the Executive a power to act in a manner wholly divorced from the Executive's independent institutional competencies." (12) Marci Hamilton grounds her defense of the nondelegation doctrine in the fact that "the Framers' debates focused on finding the appropriate balance of power" in the federal government. (13) Therefore, in a nondelegation inquiry, "the question to be asked is whether each branch is checking the others in ways that are constructive for effective government and for liberty." (14) And delegation of power undermines the legislature's ability to deliberate, as well as the executive's capacity for "exercising decisive leadership" and checking "the legislature's tendency to cabal." (15) Martin Redish argues that "[t]he system of separation of powers was established in order to prevent undue accretion of political power in one branch. Abandonment of the nondelegation doctrine effectively permits the executive branch to accumulate an almost unlimited amount of power." (16)

   The link between nondelegation and the separation of powers also appears in Supreme Court opinions. In Loving v. United States, the Court engaged in an extensive discussion of Montesquieu and the separation of powers in the context of a delegation challenge, noting that "[a]nother strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties." (17) Justice Thomas, the member of the Supreme Court who seems most interested in enforcing the nondelegation principle, announced in Whitman v. American Trucking Ass'ns that he "would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders' understanding of separation of powers." (18) More recently, in 2015, Justice Thomas argued in a concurring opinion:

   We have too long abrogated our duty to enforce the separation of powers required by the Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no home in our constitutional structure. (19) Thus, the separation of powers argument is prominent in Supreme Court jurisprudence and legal commentary.

   A second approach to defending the nondelegation doctrine invokes the principle of accountability. This position asserts that the delegation of legislative power to unelected and unaccountable bureaucrats undermines the accountability of government to the people and therefore the core democratic principles upon which the Constitution rests. David Schoenbrod has made this argument most forcefully. Focusing on the harmful effects of delegation on democracy and the policy problems that result from delegation, he writes, "Delegation can shield our elected lawmakers from blame for harming the public not only when a regulatory program... serves no legitimate public purpose, but also when a regulatory program should serve an important public purpose." (20) Delegation, he continues, has "the political consequence of allowing officials to duck responsibility for costs" and "helps to insulate Congress and the White House from political accountability for supporting laws that are harmful to the broad public interest." (21) This phenomenon of "blame-shifting" takes place because a law appears to bestow benefits such as clean air without any cost; the costs of acquiring clean air through government regulation follow years afterwards, and the public believes administrative agencies, not the legislature, produce it. (22) Furthermore, this argument runs, one cannot reply that agencies are accountable to the people because they are accountable to Congress, for "the agency is ordinarily unaccountable, except for egregious political sins, to most of Congress and therefore to most of the people." (23) In other words, accountability to Congress only prevents egregious agency actions, while the rest of administrative policymaking flies under the radar.

   The theme of delegation and democracy became more prominent in Schoenbrod's subsequent work criticizing delegation of lawmaking power to agencies. Responding to the claims of some of his critics that delegation does not run afoul of the principle of democratic accountability, Schoenbrod writes, "The effort to square delegation with democracy is pervasively futile because the drive for delegation, from the beginning of the twentieth century, stemmed from a desire to reduce government's accountability to ordinary voters." (24) He argues that "[f]rom its inception, the core purpose of delegation was to undercut democratic accountability." (25) Schoenbrod provides historical evidence that shows the progressives' rejection of democracy in favor of "elitist" rule by bureaucratic experts was the primary cause of the abandonment of the nondelegation doctrine in the twentieth century. (26) The entire purpose of the delegation of power was to undermine democratic accountability and to allow experts, not generalist politicians, to make policy. (27)

   This emphasis on democratic accountability is characteristic of many scholars who defend the nondelegation doctrine. (28) Martin Redish's nondelegation principle of "political commitment" also rests upon the concept of democratic accountability, as well as separation of powers. (29) Redish argues that the nondelegation doctrine "embodies fundamental elements of American political theory--namely accountability and checking--which are seriously undermined by its abandonment." (30) According to Redish, the nondelegation doctrine is the principle that emerges where accountability and separation of powers principles converge. (31) It is here that Redish articulates the "political commitment" principle, which states that the best way to devise a principle for enforcing the doctrine is to "return to...