Justices Focus on Nondelegation Issues

by Randolph J. May
Legal Times, July 3, 2000

The Supreme Court ended this term with its usual array of high-profile individual rights cases involving such things as gay Boy Scout leaders and late-term abortion bans. For administrative lawyers, though, the big enchilada came March 21 with the decision in Food and Drug Administration v. Brown & Williamson Tobacco Corp.

Brown & Williamson is as significant as the notorious rights cases if one believes that the structure of government is as important as the Bill of Rights in protecting us against abuses of power. At bottom, the case is about the ceaseless tugging and pulling among the branches of government as they check and balance each other.

In two other cases this term, justices in the majority suggested that they had separation-of-powers concerns (even as the Court dodged the issue). Coupled with Brown & Williamson and a key cert grant, these may portend a renewed focus on maintaining the balance among our three branches of government.

The immediate question in Brown & Williamson was whether the FDA possessed authority under the Federal Food, Drug, and Cosmetics Act (FDCA) to regulate tobacco as a drug. Under a literal reading of the statute, the FDA's claim of jurisdiction was plausible. But too much context overwhelmed too little text.

In another 5-4 split, the Court ruled that the FDA lacks jurisdiction because: (1) tobacco products don't fit the FDCA's overall regulatory scheme, which requires that the agency ban, not merely regulate, unsafe products; (2) enactment of other legislation demonstrates that Congress has created a distinct regulatory scheme for tobacco that excludes the FDA; and (3) the tobacco-specific laws were adopted against the backdrop of previously consistent FDA opinions disavowing authority to regulate tobacco products.

In my Dec. 13, 1999, column, I predicted that "the contextualists have the better argument, so the FDA should lose." (Better to be right by one vote than not at all.) I also wrote that the decision might well highlight the Chevron deference rule.

In Chevron U.S.A. v. Natural Resources Defense Council (1984), the Court held that in reviewing an agency action, a court must first ask whether Congress has directly spoken to the issue. If so, the inquiry is at end. But if Congress has not specifically addressed the question, the court must respect the agency's statutory construction as long as it is reasonable. Even though agencies are not directly accountable to the people, the Chevron Court said, "the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices."

In her majority opinion in Brown & Williamson, Justice Sandra Day O'Connor, citing Chevron, noted that deference "to an agency's construction of a statute it administers is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to fill in statutory gaps." But in "extraordinary" cases of "economic and political consequence," she explained, "there may be reason to hesitate before concluding that Congress has intended such an implicit delegation."

As these references to implicit delegations imply, profound separation-of-powers issues lurked below the surface: How does a court identify cases of such "extraordinary" consequence that a lesser standard of deference might apply? And when the intent is so "implicit" that the Supreme Court divides 5-4 trying to discern it, should Congress be required to declare its intentions more specifically?

The Court will have an opportunity to address these questions next term now that it has granted review in Browner v. American Trucking Associations.

In ATA, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the Environmental Protection Agency's construction of a Clean Air Act provision violated the nondelegation doctrine because the EPA "offer[ed] no intelligible principle" drawn from the statute to be used in establishing air quality standards. Instead of the agency's carrying out the wishes of Congress, the court held that the EPA's construction of the statute left it with unfettered discretion to decide "how much [pollution] is too much."

Many argue that there is no place in the modern regulatory state for a meaningful nondelegation doctrine. If Congress fails to set forth intelligible principles, decisions simply default to the other politically accountable branch under Chevron. In this view, the president can decide, just as well as Congress, "how much is too much."

But we have a system in which Congress makes the laws and the chief executive executes them. Although both Congress and the president are politically accountable, the Constitution does not contemplate that they be accountable for performing the same functions.

While the courts should be cautious, it's not out of bounds for the judicial branch to hold unconstitutional any laws in which Congress has simply abdicated its responsibility to make fundamental social and economic policy choices. If Congress is allowed to delegate its lawmaking authority to the executive, its buck-passing habits will become even more ingrained.

There are other statutes that, because of their vagueness, probably present a stronger case for an unconstitutional delegation than the Clean Air Act, which directs the EPA to set standards at levels "requisite to protect the public health" with an "adequate margin of safety." But ATA at least presents the Court with an opportunity to breathe some life into the nondelegation doctrine, even if only by way of well-chosen dicta.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. May can be reached at rmay@pff.org. His column, "Fourth Branch," appears monthly in Legal Times.
Here We Stand

Separation-of-powers issues also surfaced, but were not addressed meaningfully, in two standing cases this term.

Under Article III, the judicial power extends only to deciding "Cases" and "Controversies." The concept of standing keeps courts within this constitutionally prescribed boundary. As set forth in Lujan v. Defenders of Wildlife (1992), a plaintiff must establish three "irreducible" requirements: There must be an "injury in fact," that is, a concrete harm both actual and imminent; there must be causation between the plaintiff's injury and the defendant's conduct; and there must be redressability, that is, "substantial likelihood" that the relief sought will remedy the alleged injury.

Citizen suits frequently present difficult standing questions, even when the injury is continuing. In Friends of the Earth v. Laidlaw Environmental Services (Jan. 12, 2000), the Court held that environmental groups had standing to pursue a Clean Water Act suit even though the offending conduct had ceased - and the only relief sought was a civil penalty, payable to the U.S. Treasury, for the purpose of deterring future conduct.

The threshold standing issues in Laidlaw implicated separation-of-powers considerations. As Justice Anthony Kennedy's concurrence pointed out, "Fundamental questions are raised when we ask whether exactions of public fines by private litigants, and the delegation of Executive power which might be inferable from the authorization, are permissible in view of the responsibilities committed to the Executive by Article II."

The other standing case, Vermont Agency of Natural Resources v. United States ex. rel. Stevens (May 22, 2000), involved the False Claims Act, which allows a private individual to bring an action on behalf of the United States to recover damages for fraudulent claims and to share in the proceeds of any amount recovered. Justice Antonin Scalia, writing for the majority, found that the private plaintiff had standing because the False Claims Act can be regarded as effecting a partial assignment of the government's damages claim. But he also pointedly observed, "We express no view on the question whether qui tam suits violate Article II."

The answer to the questions highlighted by Justices Kennedy and Scalia ought to begin like this: Just as Congress cannot delegate wholesale its lawmaking authority, the president cannot delegate his authority to execute the laws. The more attenuated standing becomes, the more likely a private suit becomes a means of displacing the executive's traditional enforcement function. If a private litigant may sue to force a defendant to pay large civil penalties, it obtains tremendous bargaining power to achieve ends that might conflict with the way the president otherwise chooses to carry out the law.

The Laidlaw and Vermont Agency litigants did not present the question of whether allowing those suits violated Article II. But when similar cases come along in which the outer boundaries of standing are tested, the Supreme Court may be forced to focus on the handoff of executive responsibility in the same way that next term in ATA it will wrestle with chronic legislative buck-passing.

In a constitutional system that relies as much as anything else on separate and diffused powers to curb government overreaching and to maintain democratic vitality, there could be worse ways for the Court to spend its time.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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