I’ve just posted a new paper on SSRN that focuses on what I call “Americana administrative law.” The premise is that nondelegationists are justifying a juristocratic take on nondelegation—operationalized through the major questions doctrine—with cynical or declinist notions of Congress and congressional incentives. The “Americana” in Americana administrative law comes from the nondelegationists’ attempt to restore an idealized Congress that has never existed as cleanly as nondelegationists suppose. Americana administrative law posits connections between delegations and every manner of perceived ill currently facing Congress—partisanship, low legislative productivity, and a generalized decline in congressional functioning. The point is that Congress cannot be left to police the outer bounds of its own delegations.
My paper scrutinizes the rise of Americana administrative law in the works of Justice Gorsuch, Judge Neomi Rao, and scholars like David Schoenbrod. Much of this genre is influenced by works from the last century showing that lawmakers may delegate to avoid the costs associated with making concrete decisions. Under this view, when Congress delegates a decision to a federal agency, it avoids decision making and creates a policy “lottery” at the agency level. For example, Theory of Legislative Delegation, made this point in 1982. The original literature in this vein—as a whole— wasn’t making the point that all delegations are about avoiding the costs of legislating, but these works influenced a generation of nondelegationists who argue that we ought to view delegations with skepticism.
Justice Gorsuch has provided two high-profile examples of Americana administrative law with his opinions in Gundy and in last month’s OSHA vax-or-test case. In his Gundy dissent, Justice Gorsuch discussed congressional incentives with a patronizing disdain. “Legislators,” he wrote, “might seek to take credit for addressing pressing social problems by sending it to the executive for resolution, while at the same time blaming the executive for the problems that attend whatever measures he chooses to pursue.” In Gundy, and more recently in the OSHA vax-or-rest case, Gorsuch has focused on lawmakers’ incentives to show that “the job of keeping the legislative power confined to the legislative branch couldn’t be trusted to self-policing by Congress.”
I’ve been working on my paper ever since I first read the opinions in Gundy. It struck me that Gorsuch’s take on delegations was a shift in the logic of the law and a clever pitch for nondelegation. Administrative law’s most famous cases operate off the well‑informed belief that ambiguity is an inescapable byproduct of the legislative process. Chevron deference, for example, creates an across-the-board presumption that ambiguity should—subject to important exceptions—be construed as a delegation of authority to expert agencies. Gorsuch’s view flips the script of the admin law canon. In the OSHA case, it replaces a reasonable delegation of emergency authority with a feckless Congress that’s avoiding the costs of decision making.
And Americana administrative law is an extremely clever pitch. In law school I had always thought that nondelegationist impulses were driven by a fear of executive aggrandizement. But that fear is tough to operationalize. The Roberts Court, for example, mixes a skepticism for assertions of power by low-level bureaucrats with a warm regard for presidential authority. And the weaknesses of the executive frame for nondelegation go back further than the Roberts Court era. You can make a decent case (and indeed some have) that the Supreme Court’s 1935 love affair with the nondelegation doctrine was, at least to some extent, impeded by its offsetting impulses on presidential authority.
In comes thinkers like Judge Neomi Rao. Rao, in fleshing out her theory of the “collective congress,” argued that the better pitch for a juristocratic nondelegation doctrine focused on the view that delegations corrupt congressional incentives. One rhetorical benefit of this move is that it frames nondelegation as being less about inter‑branch contestation and more about the Court saving Congress from its own worst instincts. That’s the rhetoric of juristocracy, whereby judges elevate themselves above separation-of-powers disputes and frame themselves as neutral “umpires.”
That literature has blossomed over the last decade. In a short but well-written piece, Adam White focused on “the deforming effect that previous Congresses’ delegations of power to the executive branch can have on subsequent Congresses.” White noted the power of this Congress-focused pitch as succinctly as anyone:
As Justice Scalia observed in Mistretta, conservative judges shy from invoking the Nondelegation Doctrine to strike down statutes broadly delegating regulatory power because they believe that it is better to concede the issue to the legislative process than to assert judicial power on such an indeterminate question. But if Congress’s own gridlock is itself exacerbated by the courts’ hands-off approach, then prudence may counsel in favor of judges asserting the nondelegation doctrine more energetically—at least for long enough to help bring Congress out of its cul-de-sac.
If Congress is itself corrupted by delegationists, the courts may have to intervene like the parents of a wayward youth.
And these pitches for juristocracy are paired with increasingly grand justifications. A recent paper the Gray Center argues that a juristocratic nondelegation doctrine might promote compromise, accountability, and combat polarization. Rao, for her part, has connected the threats posed by delegations to gridlock, partisanship, and legislative productivity. But the normative upsides of nondelegation are taken on faith, with little or no evidence provided in the literature. And Americana administrative law never grapples with the literature establishing that delegations have been a ubiquitous feature of American governance since the Founding. Instead, the literature reasons back from an imagined Congress that worked as it ought to. Americana administrative law is about avoiding the realities of modern legislative politics by returning to a doctrine that has only ever been applied twice. In doing so, it ignores the works showing that lawmakers have many complex reasons for delegating.
Regardless of these problems, Americana administrative law appears to have had a deep influence on members of the judiciary, and I’m confident that it will be in our near future. In the end, the way forward probably lies in pivoting towards the congressional scholarship for more nuanced takes on Congress’s role in separation-of-powers disputes. Portions of the administrative law literature are wedded to unsupportable notions of Congress. The literature would do well to drop the pretense that judicial doctrine is a predictable tool for “fixing” Congress or reordering lawmakers’ incentives.
Beau J. Baumann is an appellate attorney at the Department of Justice. He welcomes all comments at email@example.com.