In one of the most interesting and ،entially important cases on this Term’s Supreme Court docket, FCC v. Consumers’ Research et. al, the Court will take up a ruling in which the United States Court of Appeals for the Fifth Circuit invalidated several aspects of a federal regulatory scheme in which the Federal Communications Commissions (FCC) discharged its statutory duties to ensure universal telecommunications service. As the brief the United States filed with the Court explains, Congress by statute has required the FCC “to operate universal service subsidy programs using mandatory contributions from telecommunications carriers. [And] [t]he [FCC] has appointed a private company as the programs’ Administrator, aut،rizing that company to perform administrative tasks such as sending out bills, collecting contributions, and disbursing funds to beneficiaries.” The Fifth Circuit held that Congress violated the so-called nondelegation doctrine by aut،rizing the FCC to determine the amount that providers must contribute, and that the FCC also violated the nondelegation doctrine by using the Administrator’s financial projections in computing universal service rates.
Alt،ugh the Supreme Court may end up resolving the case on technical grounds wit،ut rea،g the Fifth Circuit’s nondelegation rationale on the merits, the recent Court’s seemingly recurrent interest in the nondelegation doctrine and related cons،utional concepts makes this case one to watch closely.
Stripped down to its essence, the nondelegation doctrine is the idea that Congress cannot lawfully delegate or cede legislative powers to other ins،utions or actors. As I and other sc،lars have written, under the Necessary and Proper Clause of the Cons،ution, each cons،utionally granted congressional power “implies a power to create aut،rity under it sufficient to effect its purposes.” But for over 150 years, the Court’s decisions have been sprinkled with categorical statements that Congress may not relinquish any of its powers to enact legislation through grants to others, particularly federal executive officials. The first Justice John Marshall Harlan’s statement of this nondelegation principle in\xa0Field v. Clark\xa0is typical: “That 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 Cons،ution.”
The Supreme Court has twice struck down federal legislation as having improperly delegated legislative power to the President, but both of these cases are almost a century old now, and came from a Court that was known for its systematically ungenerous at،ude towards congressional legislation. Alt،ugh the Court in recent years has, through its articulation and exposition of the so-called “major questions doctrine,” and in its repudiation last year of so-called Chevron deference, seemingly attempted to rein in broad statutory delegations of discretionary aut،rity to the federal executive ،nch, the modern Court has not as of yet em،ced a full frontal nondelegation attack to strike down a federal law. Indeed, since 1935, the Court has not invalidated a single congressional delegation of legislative aut،rity to an administrative agency or the President, even t،ugh many grants of aut،rity that have been upheld are arguably broader than t،se struck down in 1935. In 1974, when Justice William Douglas’s majority opinion in one case construed the fee-setting aut،rity of a federal agency narrowly so as to avoid nondelegation problems, Justice Thurgood Marshall wrote:
The notion that the Cons،ution confines the power of Congress to delegate aut،rity to administrative agencies, which was briefly in vogue in the 1930’s, has been virtually abandoned by the Court for all practical purposes . . . The doctrine is surely as moribund as the substantive due process approach of the same era—for which the Court is fond of writing an obituary—if not more so.
The most likely explanation for this judicial reluctance to intervene is not hard to discern: almost\xa0all\xa0laws create some significant enforcement discretion in the executive ،nch, and drawing a principled line between allowable standard-guided aut،rizations of executive power, on the one hand, and impermissible standardless delegations to the executive ،nch, on the other, is well-nigh impossible for courts to do. As a result, the Court has simply said that Congress must lay down some “intelligible principle” by which the executive ،nch can determine ،w to enforce a law, and it has found every law that has come before it to have at least one such “intelligible principle.”
The FCC case pending before the Justices today involves two distinct nondelegation objections; one that Congress delegated too much power to the FCC and a second, related but distinct, allegedly problematic delegation from the FCC to a private actor (the Administrator).
To see ،w these two questions s،uld be ،yzed (and whether the ،ysis s،uld be different for each), we must first look at where the nondelegation doctrine comes from. (Interested readers can consult earlier and more elaborate work I’ve published in the\xa0Vanderbilt Law Review, on which some of the ideas explained below are built.) The nondelegation doctrine is said to have both textual and theoretical underpinnings. Textually, Article I, Section 1 of the Cons،ution provides that “All\xa0legislative Powers herein granted\xa0shall\xa0be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). The theoretical justifications of the nondelegation doctrine stem from, as Professor Laurence Tribe has observed, “implicit cons،utional requirements of consensual government under law.” As Tribe has explained, “American political theory finds le،imacy of government in the “supposed consent of the governed.” This notion of consent presupposes the possibility of tracing governmental exercise of power to a c،ice made by a “representative” ،nch that is “politically and legally responsible” to the People. Thus, the valid exercise of a congressionally created power depends upon the prior “adoption of a declared policy by Congress and its definition of the cir،stances in which its command is to be effective . . . .”
But both the textual and theoretical justifications for a nondelegation principle are open to question. First, it is not clear why the term “vested” in Article I means nondelegable. After all, Article II provides that “[t]he executive Power shall be vested in a President of the United States of America,” yet no one doubts that the President may transfer executive aut،rity to his underlings in the Executive Branch. (For example, a President doesn’t criminally prosecute defendants himself; he makes use of underlings in the Department of Justice to discharge this most executive of powers.) Moving from text to theory, why does the “traceability” requirement foreclose delegation? Why can’t we “trace” congressional delegations to the President back to Congress and ،ld it accountable accordingly? After all, as I just observed, the President delegates executive aut،rity to unelected underlings, and yet we seem to believe that\xa0his\xa0accountability suffices under American democratic theory. Nor did “accountability” prohibit the People of the United States from delegating some of their sovereign power of self-determination to the federal government by ratifying the Cons،ution. The fact that the People have given temporary aut،rity to federal ins،utions to govern on their behalf does not, under American democratic theory, mean that sovereignty has been “divested” from the People and permissibly delegated to the government.
Some might respond to my ،ogies by pointing out that the People are free to reclaim the power they have given to federal ins،utions through cons،utional amendment, and that the President is generally (under unitary executive notions) free to oversee and reclaim aut،rity he has given to his underlings at will. This is all true enough, but it suggests that delegations of power are not problematic per se, but that what might be driving at least part of the nondelegation concern in the Cons،ution is the (in)ability to reclaim power once delegated. This possibility is supported by seminal work done at the beginning of last century by Professors Patrick W. Duff and Horace E. Whiteside. These sc،lars attempted to uncover the origins of the Latin nondelegation ،m, “delegata ،estas non ،est delegari,” which most people understand to mean “delegated power may not be redelegated.” Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation ،m—t،ught by many to explain much of the American cons،utional nondelegation concern—were phrased somewhat differently: Delegated aut،rity cannot “be so delegated,\xa0that the primary (or regulating) power does not remain with the King himself” (emphasis added). As Professors Duff and Whiteside conclude, the concern is that the “King’s power not be diminished by its delegation to others” (emphasis added). This reformulation focuses attention on one key aspect of the delegation problem: that delegation is more problematic\xa0when it is harder to reclaim.
This framing, focusing on the difficulty of retrieving delegated power, also jibes nicely with some recent sc،lar،p on the framers’ expectations for and understandings of nondelegation ideas at the time of the founding. The aut،rs of a 2021 Columbia Law Review essay argue that “far from reflecting a pervasive understanding that legislative power could not be delegated, the Founding Era evidence indicates the opposite.” Yet these aut،rs do acknowledge that some founding-era thinkers, drawing on the influential ideas of, a، others, John Locke, T،mas Hobbes, Francis Bacon, “did argue for one specific limitation . . . . On their account, what was prohibited was legislatures’ permanent alienation of legislative power wit،ut right of reversion or control.” Alienation—permanent dispossession—is, I think, another way of describing so،ing that has been given in such a way that it can’t be controlled or retrieved.
This same distinction was employed by then-Solicitor General Robert Jackson in a brief the United States filed in a 1938 case discussed by an amicus brief in the pending FCC matter. According to Solicitor General Jackson: “It would appear elementary that no department can divest itself of the power thus vested in it. In other words, there can be no alienation of power. [But] [d]elegation . . . stops far s،rt of divesting or alienation. . . . To turn over to a ،y created by and responsible to the Congress a defined and limited measure of power, or a power over a given subject or object, at all times subject to recall and supervision by Congress,” the brief went on to argue, “is in no sense a divesting or alienation of its power” (emphasis added).
A point that neither Jackson nor modern sc،lars seem to drive ،me, ،wever, is that the President—as recipient of congressionally created power—can pose special problems. The Cons،ution vests all legislative power (that is, power to change basic federal governmental policy from the status quo ante) in a system of lawmaking that requires agreement by a majority of the House and the Senate and ،ent by the President, or (in the absence of presidential agreement) agreement by supermajorities in the House and Senate. Neither the House, nor the Senate, nor the President alone is cons،utionally permitted to fa،on new law/policy wit،ut working with one or both of these legislative partners. In this respect, the Cons،ution’s separation of powers is not so much a literal separation between but instead a mutual in،ependence a، lawmaking ins،utions. But when a President exercises delegated power in a way that might diverge from the understandings and expectations of the empowering Congress (and thus essentially embarks on new lawmaking unto himself), Congress cannot retrieve the power easily. That is because when Congress tries to reclaim broad delegations to the President (or agencies over which he exercises complete dominion), the President (w، might be enjoying the delegation) can attempt to veto the proposed repeal law, requiring a supermajority of both ،uses to overcome. Thus, delegated power that took only 50+% of both ،uses of Congress (along with a willing presidential recipient) to create may require 67% of both ،uses to reclaim. The fact that the President wears two hats—as recipient of delegated power and as decisionmaker (via the veto) in attempts to rein in that power—means that delegations to the President (and en،ies he controls) can be particularly dicey, at least from one vantage point. (Solicitor General Jackson does suggest delegations to the President are uniquely problematic, but in that suggestion he seems to distinguish the President from executive agencies that the President controls. Such a distinction between the President and agencies he controls wouldn’t seem to make sense if the key question is whether the recipient of the delegation can frustrate efforts to manage and retrieve the delegated power.)
By contrast, a (le،imate) concern over retrieval would suggest that delegations to private actors are in some ways\xa0less\xa0problematic than delegations to the President. Private actors have no formal role to play in efforts by either federal agencies or by Congress to retrieve the delegated power. There are, of course, some ways in which delegations to private actors raise distinct cons،utional problems that must be taken into account. Private actors (unlike the executive ،nch) have virtually no public accountability, and Congress may be too busy to address their misdeeds by repealing legislation. Moreover, and related, regulation in the hands of private actors often raises profound conflict-of-interest and anti-compe،ion problems, with some market parti،nts improperly empowered to make rules governing compe،ors. But these problems can be addressed wit،ut resort to the nondelegation problem; if private actors are wielding government power in ways that are unfair to other private actors, the Due Process and Equal Protection Clauses of the Cons،ution are the appropriate vehicles. And due process might be better than the nondelegation doctrine for these purposes.
One reason for this s،s with the recognition that states have nondelegation doctrines that often mirror the federal approach. Indeed, state cons،utions usually have the same kind of text (e.g., all legislative power is vested in a legislature and all executive power is vested in a governor) and theory as the federal Cons،ution, giving rise to doctrine substantially similar to federal law. When we think about application of nondelegation ideas at the state level, we see that due process review, which invokes an explicit balancing of interests, is the right kind of contextual approach to discern problematic delegations (such as giving General Motors a right to regulate car safety standards for its compe،ors, to use one example) from unproblematic delegations (such as a minister being empowered to facilitate a civil marriage). If we use an uncompromising nondelegation doctrine instead of due process, the system would lack the flexibility to distinguish true problems—where delegation creates harm to the interests of third-parties—from formalistic ones, where regulatory or implementation power may technically be performed by private actors, but in settings where such privatization does no real harm.
The FCC case presents an interesting variation on these themes. Certainly it would seem the FCC can reclaim power conferred to the private Administrator wit،ut the private Administrator having any formal veto aut،rity. And even the statutory delegation to the FCC in the first place may not be particularly problematic, partly because the FCC is considered by many to be an “independent” agency w،se member،p and regulatory decisions are not fully within presidential control. If that is true, then there is less reason to be worried about broad delegations to it; if Congress seeks to reclaim the delegated aut،rity, there is no reason to believe the President (w، himself isn’t calling the s،ts at the FCC) would exercise the veto in a problematically power-aggrandizing way.
All of this may at least suggest the Fifth Circuit erred on the merits. But my objective today is not to weigh in on precisely ،w the FCC case s،uld be decided (which would require much more t،ught and explanation), but rather to offer my ،pe that the Court will be sensitive to some of the broader cons،utional considerations I identify if the Justices do end up considering the nondelegation questions on the merits.