Notice & Comment

Nondelegation’s Gerrymander Problem

For all of its encouraging moments, the Justice Department’s “Summit on Modernizing the Administrative Procedure Act” was also replete with reminders that the difficulties of modern administrative law are in large part the ramifications of the light-handed Nondelegation Doctrine. When agencies are given enormous power, we reliably reach for auxiliary precautions to encourage steady, accountable administration of power, even if it comes at the expense of the executive branch’s constitution ideal of swift, energetic, secretive action. And when Congress vests agencies with enormous discretion, the courts’ ideal role of interpreting the law becomes a role of ascertaining the reasonableness of the executive’s interpretation of the law.

This is hardly a novel insight, of course; Justice Scalia long ago identified the connections between delegation and rulemaking process, and between delegation and deference; he’s hardly the only one. Until Congress puts clearer and narrower limits on the powers that it delegates to agencies, we will be forever arguing about judicial deference and agency process.

And so Justice Gorsuch’s emphatic call in Gundy for a revised nondelegation doctrine is inspiring a wave of scholarship debating delegation. (The C. Boyden Gray Center for the Study of the Administrative State is helping in its own small way next year, hosting a spring roundtable and autumn conference on nondelegation.) In that respect, we can think of Gorsuch’s Gundy dissent as the nondelegation version of Scalia’s TalkAmerica concurrencei.e., the opinion that launched a hundred law-review ships.

Perhaps the most significant part of Gorsuch’s opinion is the fact that Chief Justice Roberts joined it, to the surprise of many. But we shouldn’t overlook the significance of Justice Thomas also joining the opinion, for it reflects a subtle but important shift in his own thinking. Just five years ago, Justice Thomas staked out a categorical position in the Amtrak case, asserting that agencies can never be given the power to “create generally applicable rules of private conduct,” an approach to nondelegation even stricter than Gorsuch’s. But in Gundy, Thomas joined Gorsuch’s approach, which allows agencies to “fill up the details” of a regulatory program’s generally applicable rules, at least so long as Congress itself “makes the policy decisions.” The Gundy approach sounds much like Thomas’s original instincts in Whitman, but more moderate than Thomas’s more recent approach in Amtrak. Perhaps Gorsuch has convinced Thomas to recalibrate a little.

Now court-watchers’ eyes turn to Justice Kavanaugh, in his brief statement last month in Paul v. U.S., indicating that Gorsuch’s Gundy approach “may warrant further consideration in future cases.” If anything, Kavanaugh focused even more on Justice William Rehnquist’s approach to nondelegation in The Benzene Case.

Indeed, Kavanaugh’s statement in Paul is an abbreviated version of the Constitution Day remarks that he delivered at the American Enterprise Institute in 2017, honoring Rehnquist’s approach to constitutional issues such as nondelegation. As in Paul, Kavanaugh’s AEI remarks applauded Rehnquist for operating within existing precedent to advance the nondelegation doctrine’s constitutional values through statutory construction—an approach that Kavanaugh himself undertook as a D.C. Circuit judge, in review of the FCC’s Open Internet Order.

To the extent that Kavanaugh is focused on The Benzene Case, he would do well to read Justice Scalia’s own analysis of that case, offered long ago in a 1980 essay for AEI’s Regulation magazine. In “A Note on the Benzene Case,” Scalia presaged his own Whitman opinion by warning that energetic judicial enforcement of the nondelegation doctrine raises difficult questions about the proper role of a judge in drawing lines and declaring rules: that is, “the difficulty of enunciating how much delegation is too much“:

The relevant factors are simply too multifarious: How significant is the power in question (for example, fixing customs duties versus fixing prices and ages for the entire economy)? How technical are the judgments left for executive determination (for example, establishing construction criteria for nuclear reactors versus establishing standards for “fair” advertising)? What degree of social consensus exists with respect to those nontechnical judgments committed to the executive (for example, defining “unfair or deceptive trade practices” versus defining acceptable levels of pollution)? And—most imponderable of all—how great is the need for immediate action (for example, the executive-determined price controls authorized in World War II versus those authorized in 1970, during the Vietnam conflict)?

Rehnquist’s opinion—which is the most thorough discussion of this subject to be found in any Supreme Court opinion since 1935—distinguishes some of the earlier cases, but provides no solution to this second problem of establishing a workable test. It does little more than recite Chief Justice Taft’s conclusion that delegations of legislative authority must be judged “according to common sense and the inherent necessities of the governmental co-ordination.” And one can probably not intelligently say much more than that.

A doctrine so vague, it may be said, is no doctrine at all, but merely an invitation to judicial policy making in the guise of constitutional law.

For those of us who believe that the stockpile of overbroad statutory delegations is a dangerous impediment to a well-functioning Congress today, Scalia’s point is a bitter pill to swallow. But Scalia was right: any recalibration of the nondelegation doctrine will have to overcome this fundamental aspect of judicial review. If the rule of law is a law of rules, then any new nondelegation doctrine must be based on clear, judicially administrable rules rooted in the Constitution itself.

In that respect, the Supreme Court opinion most important for the nondelegation doctrine was not Gorsuch‘s dissent in Gundy, or Kavanaugh’s statement in Paul, but—as my headline suggests—the Chief Justice’s opinion for the Court in Rucho v. Common Cause, rejecting calls for the justices to formulate a constitutional rule against “partisan gerrymanders.”

That is, I think it is fair to say that progressives’ argument for judicial intervention against partisan gerrymanders is a mirror image of conservatives’ argument for judicial intervention against excessive legislative delegations. Both arguments proceed along these lines:

  1. We behold a threat to the very foundation of constitutional self-governance.
  2. This threat cannot be solved by the legislative process, because it is itself the product of the legislative process, even as it further distorts the legislative process.
  3. For that reason, only the courts can save us, and the courts must save us, by discerning and imposing a rule that solves a problem of degree.

This analogy simplifies things, of course, and I don’t want to overstate it. Advocates for a nondelegation doctrine can at least point to the Constitution’s express vesting of legislative power Congress alone, separated from the executive and judicial powers, and we can further point to warnings from Madison (and Locke, and others) against the combination of multiple powers in one branch of government. We also can point to the fact that the Supreme Court has been aware of the nondelegation problem from Republic’s early years.

That said, so much of the Court’s opinion in Rucho, declining to conjure and declare a rule against excessively partisan gerrymanders, calls to mind Scalia’s own skeptical view of calls to conjure and declare a rule against excessive legislative delegations of power:

“In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in Vieth: Any standard for resolving such claims must be grounded in a ‘limited and precise rationale’ and be ‘clear, manageable, and politically neutral.'”

… “As noted, the question is one of degree: How to ‘provid[e] a standard for deciding how much partisan dominance is too much.’  And it is vital in such circumstances that the Court act only in accord with especially clear standards: ‘With uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.’ If federal courts are to ‘inject [themselves] into the most heated partisan issues’ by adjudicating partisan gerrymandering claims, they must be armed with a standard that can reliably differentiate unconstitutional from ‘constitutional political gerrymandering.'”

… “Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal courts.”

… “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. ‘[J]udicial action must be governed by standard, by rule‘ and must be ‘principled, rational, and based upon reasoned distinctions’ found in the Constitution or laws. Judicial review of partisan gerrymandering does not meet those basic requirements.” (Citations omitted.)

Even if the Court’s criticism of the proposed partisan gerrymandering doctrine does not apply with precisely equal force to the nondelegation doctrine, the criticism should give reformers pause—because, again, they are virtually the same points that made Antonin Scalia so wary of an aggressive nondelegation doctrine.

Any successful reform of the nondelegation doctrine will have to find the answers that gerrymander reformers lacked. Or it will have to rest on the conclusion that Scalia was fundamentally wrong in concluding that the dangers of judicial intervention outweighed the dangers of judicial restraint.

Adam White is a resident scholar at the American Enterprise Institute and an assistant professor of law at George Mason University, where he directs the C. Boyden Gray Center for the Study of the Administrative State.

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