In Jeff’s post last Thursday, he makes the following observation about the continuing role of the nondelegation doctrine in administrative law:
Would it make sense, for example, to trade a more vigorously enforceable non-delegation doctrine in exchange for radically lightened notice-and-comment procedural requirements, less monitoring of the use of non-legislative rules, more simplified judicial review of questions of law, and/or arbitrary-and-capricious review that looks a lot more like rationality review? This may be crazy; things often are the way they are for a reason. But it might be worth unpacking. More on this anon.
Jeff’s suggestion for trading away the nondelegation doctrine (at least vigorously enforced) for a suite of reforms to other administrative-law doctrines reminds me of a paper Kathryn Watts presented at our law school faculty workshop last spring. InRulemaking as Legislating (forthcoming in the Georgetown Law Journal), Professor Watts argues that we should adopt Justice Stevens’ call to abandon the nondelegation doctrine and embrace the Candid Approach that federal agencies exercise legislative powers. Unlike the bulk of prior scholarship on the nondelegation doctrine (and similar to Jeff’s approach), Professor Watts focuses not on the constitutional debates about the doctrine but on how adherence to the nondelegation “fiction” has led to inconsistency in administrative law more generally. Here’s a bit more explanation of the project from the abstract:
Various judges and scholars have decried the fictional nature of the Court’s current nondelegation doctrine, and some have called for the Court to abandon the doctrine’s central premise prohibiting delegations of legislative power. These calls, however, have been narrowly focused on the constitutional contours of the nondelegation doctrine itself. Scholars, accordingly, have paid little attention to how the nondelegation doctrine has created doctrinal inconsistency that reverberates throughout administrative law. This Article aims to fill that gap. Specifically, this Article is the first to systematically explore how administrative law’s most central doctrines — including Chevron and Auer deference, arbitrary and capricious review, procedural constraints on agency rulemaking, procedural due process and the test used to define legislative rules — have been influenced by the Court’s nondelegation jurisprudence, and how these various doctrines would be impacted if the Court jettisoned the nondelegation doctrine and frankly acknowledged rulemaking as an exercise of delegated legislative power. This Article concludes that some key administrative law doctrines at least implicitly recognize that agency rules flow from delegations of legislative power, putting those doctrines in tension with the nondelegation doctrine. In contrast, other key administrative law doctrines refuse to view agency rulemaking through a legislative lens, aligning them with the nondelegation doctrine’s central premise. Thus, the Court would need to change some administrative law doctrines and clarify others if the Court rejected its current approach and held that Congress constitutionally can and routinely does delegate legislative power. Although these doctrinal changes would have their costs, the changes would be normatively desirable. By openly recognizing that rulemaking flows from a delegation of legislative power, many of administrative law’s disparate doctrines, which have long been operating under a clouded view of rulemaking, would gain a more unified, coherent lens. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power.
Although I doubt the Court will have the appetite to heed Professor Watts’ call to action, this is a fascinating intellectual project, and it seems to be — to borrow from Jeff — “[s]queezing complexity to a different part of the balloon” with the objective to “achieve the same goal more effectively.”
If I were tackling this project, however, I would start with the opposite premise: The principle of nondelegation of legislative authority should be the cornerstone of the modern administrative state. Because the Court has found its contours to be difficult to enforce directly, it has crafted a number of doctrines (the nondelegation canon, hard look review, notice-and-comment rulemaking requirements, etc.) to attempt to serve as proxies for the nondelegation doctrine itself. These are the principles Professor Watts would modify (or eliminate). There are, of course, other doctrines that are not as consistent with nondelegation principles. These are the principles Professor Watts would keep unchanged. The intellectual move should be to make the latter doctrines more consistent with nondelegation principles, not to abandon any effort to limit the exercise of legislative powers to the constitutionally required process of bicameralism and presentment.
There are important values advanced by a lawmaking requirement of bicameralism and presentment that shouldn’t be discarded just because such values are hard to enforce via the courts, or because the second-best judicial enforcement mechanisms create formal tensions in administrative law. Scores of books and articles have been written on these arguments, so I won’t repeat them here. But I’d end by recommending Philip Hamburger‘s new book, Is Administrative Law Unlawful? — the book that sparked Jeff’s post in the first place — as one such example worth reading.