How to Tame an Unruly Government: Why the Supreme Court Must Reinvigorate the Nondelegation Doctrine

by Grant Alan Williams, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

The Constitution states, “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”¹ Nevertheless, the Supreme Court has allowed the legislative branch to delegate its power to administrative agencies in accordance with the intelligible principle standard.² The intelligible principle states that Congress must provide detailed guidelines for administrative agencies to follow when exercising legislative power.³ The nondelegation doctrine theorizes that Congress cannot delegate its legislative power to administrative agencies in the executive branch⁴ Some legal scholars postulate that the original meaning of the Constitution did not include a nondelegation doctrine and administrative rulemaking is pertinent for proper government regulation.⁵ Others argue that the Founders possessed a firm belief that the proper separation of powers are necessary to protect civil liberties, thus the nondelegation doctrine is rooted in the founding of the United States and vis-à-vis the vesting clause.⁶

This article explores the nondelegation doctrine and why it must be reinvigorated. Section II provides a frame of the Supreme Court’s use of the nondelegation doctrine and the intelligible principle. Section III postulates the nondelegation doctrine as a necessary mechanism to prevent tyranny and advocates for its implementation via formalistic constitutional interpretation. Finally, Section IV concludes by calling on the Supreme Court to reinvigorate the nondelegation doctrine.

II. Background

A. Origins of the Intelligible Principle & Nondelegation Doctrine

The Supreme Court first utilized the nondelegation doctrine in 1892.⁷ Congress gave the President the ability to suspend sections of a tax statute for an indefinite period of time.⁸ The tax was found to be unconstitutional, as the President exercised powers the Constitution vested in the legislative branch.⁹ The Court proclaimed “[t]hat congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.”¹⁰

In J.W. Hampton, taxpayers challenged the authority of the President to determine tax rates, arguing that such legislative powers belong solely to the legislative branch.¹¹ Congress passed a statute that levied tax on imported merchandise, but the authority to determine the rate of tax was left to the President.¹² The Court held that Congress acted within its constitutional bounds when delegating such authority to the President.¹³ It further reasoned that when one branch seeks the assistance of another, the only prerequisites are common sense and the intrinsic need for coordination.¹⁴ The intelligible principle was created when Chief Justice Taft stated, “[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”¹⁵ The Court has also found the delegation of power in the furtherance of “public interest” to be constitutional.¹⁶ Since 1935, there have only been two instances where the intelligible principle test was not passed.¹⁷

B. Justice Gorsuch’s Dissent in Gundy

In 2019, Justice Gorsuch’s dissent in Gundy revitalized discussion about the nondelegation doctrine.¹⁸ The case focused on whether the Sex Offender Registration and Notification Act (“SORNA”) violated the nondelegation doctrine.¹⁹ SORNA set registration requirements for sex offenders.²⁰ It provided the Attorney General with the power to determine its applicability to pre-Act offenders.²¹ In the plurality opinion, the Court held that SORNA did not violate the nondelegation doctrine.²² In concurrence, Justice Alito hinted that he would be willing to reconsider invoking the nondelegation doctrine.²³ Justice Gorsuch, joined by Justice Thomas and Chief Justice Roberts, called for the revitalization of the nondelegation doctrine.²⁴ SORNA’s applicability to pre-Act offenders was considered a “controversial topic,” as it would require states to overhaul their current registration schemes.²⁵ Justice Gorsuch was deeply concerned with Congress prescribing the Attorney General with unlimited power to write rules.²⁶ He noted that this case sounded all alarm bells that the Founders left us, as Congress could not agree on applicability to pre-Act offenders, so it “passed the potato” to the Attorney General, who retroactively extended the statute to an unpopular class of people, sex offenders.²⁷ This commingling of powers amongst the branches of government would invite tyranny of the majority, according to Justice Gorsuch.²⁸

III. Discussion

A. Checking the Uncheckable

A concern among opponents of the nondelegation doctrine is that it may hinder the ability for administrative agencies to function.²⁹ This is the exact function our Founders intended when they declared all legislative power is to be solely entrusted in Congress.³⁰ The federal government was never intended to be so entrenched in every aspect of Americans’ lives.³¹ Lawmaking was viewed as a dangerous threat to individual liberties and an excess of it was viewed as a disease our government is most susceptible to.³² Our Founders shed blood to free us from tyranny and created the Constitution to prevent it from reoccurring. These patriots would likely roll in their graves if they saw how the government has grown into a despotic behemoth.³³ No one truly knows how many administrative agencies encompass the federal government.³⁴ Americans cannot hold these agencies accountable if we don’t even know the number of agencies. These individuals are not chosen by the people, so it is hard pressed to justify their ability to exercise powers invested in the people’s elected representatives.³⁵ For example, the Occupational Safety and Health Administration (“OSHA”) attempted to side-step Congress by mandating the COVID-19 vaccine for over eighty-four million workers across the nation.³⁶ Another example is the failed attempt of the Center for Disease Control (“CDC”) to issue an eviction moratorium during the coronavirus pandemic.³⁷ One thing is for certain, administrative agencies are pugnacious when it comes to usurping constitutional power delegated to Congress.

B. A Formalistic Approach to Nondelegation

Formalism is the legal theory that cases must be decided using deductive logic derived from the proper authority.³⁸ Conversely, realism means deciding a case on which ruling proves to be most beneficial to public welfare.³⁹ Realism is problematic because it invites judges to determine cases based on subjectivity and their personal opinions. This creates the issue of judges legislating from the bench and potential violations of the separation of powers. The Constitution is the supreme law of the land, not what a judge deems to be in the public’s interest.⁴⁰ It clearly states that all legislative powers are vested in Congress and makes no mention of delegating such powers to executive agencies.⁴¹ The Court is entrusted with the ability to exercise judicial review when other branches of government run afoul of the constitutional boundaries prescribed by our Founders.⁴² Therefore, it is paramount that the Supreme Court follow formalism and proscribe the commingling of powers amongst the different branches of government by invoking the nondelegation doctrine. Failure to do so will result in tyranny and the infringement of civil liberties our Founders warned us about hundreds of years ago.⁴³

IV. Conclusion

Justice Gorsuch’s call to revive the nondelegation should not be mistaken as a mere dog whistle for proponents of textualism. Rather, it should serve as an alarm for all Americans, warning of the creeping tyranny that is slowly plaguing our country. The system of checks and balances crafted by the Founders are muddied by the constant commingling of powers. Endless amounts of bureaucracy and unelected officials dictating policy is exactly what the Founders found against. This is why it is pertinent for the Supreme Court to tame our unruly government by reinvigorating the nondelegation doctrine.

Cover Photo by Blue Arauz on Pexels

Grant A. Williams

Grant Williams is a 3L from Kingsport, TN. Grant’s primary interests within the legal field include antitrust, securities regulation, and M&A. After law school, Grant anticipates pursuing a career as a transactional attorney and antitrust litigator. During his free time, Grant enjoys fishing, golfing, working out, playing guitar, listening to country music, and spending time with his friends and family.

References

1
U.S. Const. art. I, § 1.
2
See J. W. Hampton and Co. v. United States, 276 U.S. 394, 409 (1928); Gundy v. United States, 139 S. Ct. 2116 (2019).
3
J. W. Hampton and Co. v. United States, 276 U.S. 394, 409 (1928).
4
Nondelegation Doctrine, Legal Info. Inst., Cornell L. Sch., https://www.law.cornell.edu/wex/nondelegation_doctrine (last visited Feb. 21, 2023).
5
Julian D. Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 366 (2021).
6
Peter J. Wallision, An Empty Attack on the Nondelegation Doctrine, Federalist Soc’y (Apr. 21, 2021), https://fedsoc.org/commentary/fedsoc-blog/an-empty-attack-on-the-nondelegation-doctrine (discussing James Madison’s advocacy of the separation of powers amongst the branches of government); U.S. Const. art. I, § 1.
7
Susan E. Dudley, Milestones in the Evolution of the Administrative State, 150 Dædalus J. Am. Acad. Arts & Scis. 33, 34 (2021), https://www.amacad.org/sites/default/files/publication/downloads/Daedalus_Su21_03_Dudley.pdf (citing Marshall Field & Co. v. Clark, 143 U.S. 649 (1892)).
8
Marshall Field & Co. v. Clark, 143 U.S. 649, 680 (1892).
9
Id. at 699–700.
10
Id. at 692.
11
J. W. Hampton and Co. v. United States, 276 U.S. 394, 404 (1928).
12
Id. at 405.
13
Id. at 413.
14
Id. at 406.
15
Id. at 409.
16
See National Broadcasting Co. v. United States, 319 U.S. 190 (1942).
17
See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
18
See Julian D. Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 366 (2021); Peter J. Wallision, An Empty Attack on the Nondelegation Doctrine, Federalist Soc’y (Apr. 21, 2021), https://fedsoc.org/commentary/fedsoc-blog/an-empty-attack-on-the-nondelegation-doctrine (discussing James Madison advocacy of the separation of powers amongst the branches of government).
19
Gundy v. United States, 139 S. Ct. 2116, 2121 (2019).
20
Id. at 2131.
21
Id. at 2122.
22
Id. at 2130 (reasoning that Congress provided a well devised guideline and such delegation was a necessity of government).
23
Id. at 2130–31.
24
Gundy v. United States, 139 S. Ct. 2116, 2131, 2148 (2019) (Gorsuch, J., dissenting).
25
Id. at 2132.
26
Id. at 2132.
27
Id. at 2144.
28
Id. at 2144–45 (citing The Federalist No. 47, at 302 (Alexander Hamilton)).
29
Julian D. Mortenson & Nicholas Bagley, There’s No Historical Justification for One of the Most Dangerous Ideas in American Law, Atlantic (May 20, 2020), https://www.theatlantic.com/ideas/archive/2020/05/nondelegation-doctrine-orliginalism/612013/.
30
Gundy v. United States, 139 S. Ct. 2116, 2131, 2134 (2019); see also The Federalist No. 51 (Alexander Hamilton).
31
See generally Gundy v. United States, 139 S. Ct. 2116, 2131, 2134 (2019); The Federalist No. 51 (Alexander Hamilton).
32
Gundy v. United States, 139 S. Ct. 2116, 2131, 2134 (2019) (Gorsuch, J., dissenting) (citing The Federalist No. 48, at 309–312 (James Madison); Nos. 62, at 378, 73, at 441–42 (Alexander Hamilton); John Locke, Second Treatise of Government § 143 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690)).
33
See Richard M. Ebeling, Out-of-Control Government: How, Why, and What to Do, Am. Inst. for Econ. Rsch. (Oct. 16, 2018), https://www.aier.org/article/out-of-control-government-how-why-and-what-to-do/.
34
Clyde Wayne Crews Jr., How Many Federal Agencies Exist? We Can’t Drain The Swamp Until We Know, Forbes (July 5, 2017), https://www.forbes.com/sites/waynecrews/2017/07/05/how-many-federal-agencies-exist-we-cant-drain-the-swamp-until-we-know/?sh=58313b1e1aa2.
35
Gundy v. United States, 139 S. Ct. 2116, 2131, 2148 (2019) (Gorsuch, J., dissenting) (citing David S. Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation 99 (1993)); see also The Federalist No. 50, at 316 (James Madison).
36
See Nat’l Fed’n of Indep. Bus. v. OHSA, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (discussing how OSHA’s mandate runs afoul to the nondelegation and major questions doctrine).
37
See Ala. Ass’n. of Realtors v. Dep’t of Health and Hum. Serv. S. Ct. 2485 (2021) (per curiam) (stating the CDC does not have the power to issue an eviction moratorium).
38
Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 181 (1986).
39
Id.
40
U.S. Const. art. VI, cl. 2.
41
U.S. Const. art. I, § 1.
42
See Marbury v. Madison, 5 U.S. 137 (1803).
43
See Gundy v. United States, 139 S. Ct. 2116, 2141–2145 (2019) (citing The Federalist No. 47, at 302 (James Madison)).