Delegation in Context


Several Justices and numerous scholars have proposed to revive the nondelegation doctrine. It is common ground that the operative “intelligible principle” standard is meaningless. Moreover, any one-dimensional, stand-alone nondelegation standard will soon collapse into a hopeless “how much is too much” inquiry. Thus, nondelegationist jurists have sought to enrich the doctrine and to re-connect it to foundational separation-of-powers precepts.

To those ends, this Article parses the New Deal cases in which the Supreme Court last employed the nondelegation doctrine to declare a statute unconstitutional: A.L.A. Schechter Poultry v. United States and its immediate precursor, Panama Ref. Co. v. Ryan. Curiously unexamined in the contemporary debate, the decisions have come down to us as “intelligible principle” cases—notoriously, the only cases in which the Court found that principle wanting. But that is not what the opinions say; what the Court thought it was doing; or what anyone at the time perceived the Court to be saying or doing. Schechter-style nondelegation is not a one-dimensional, put-statutory-phrase-next-to-standard inquiry. Rather, the analysis probes the statute as a whole—its text, context, and real-world operation. And it reflects a whole-Constitution understanding, as distinct from clause-bound formalism. It asks how much power and what kind of power has been delegated to whom and why and with what legal safeguards. Under that approach, the constitutional system tolerates considerable slack for “necessary and proper” congressional responses to the demands of a modern economy and society—provided that adequate safeguards remain or are put in place. Congress may push the constitutional boundaries here or there but not all at once and to the point of compromising the constitutional architecture.

The Hughes Court’s understanding soon crumbled under an assault by President Roosevelt’s lawyers and judicial appointees. Their accomplishment was to carve up the Schechter Court’s integrated legal universe and to disaggregate constitutional principles into disconnected and largely toothless constraints on “the administrative process.” The collapse of nondelegation into an “intelligible principle” exemplifies that process of disintegration.

The recovery of a tenable, constitutionally grounded nondelegation doctrine, I contend, will require something close to the Schechter Court’s understanding of the problem. That understanding differs from the Roberts Court’s tendency to tackle separation-of-powers problems by way of grim formalism or else, the aggressive deployment of interpretive canons (foremost, the “major question” doctrine.) In cases such as Free Enterprise Fund and Seila Law, however, the Court has embraced an approach that strongly resembles Schechter in substance, though not in exact form. The cases hold that two (or more) institutional arrangements that have passed constitutional muster may yet violate the Constitution when combined in a single statute. While those cases deal with appointment and removal issues, the basic analysis translates readily into the delegation context. In fact, the decisions are best understood as nondelegation cases. Recent appellate decisions point in the same direction.

Rightly understood, Panama Refining and Schechter provide the building blocks for a tenable, constitutionally grounded nondelegation doctrine for this day and age. A closer analysis of the cases, I hope, will in formulating such a doctrine.