by Randolph J. May
Legal Times, March 26, 2001

It’s been 66 years since the Supreme Court invalidated a statute for violating the nondelegation doctrine. For those like myself who believe the doctrine embodies an important principle at the heart of our democracy, the Court missed an opportunity in its Feb. 27 decision in Whitman v. American Trucking Associations to breathe some life into the doctrine. It could have done so, even while upholding the particular Clean Air Act provisions under attack.

The nondelegation doctrine derives from the separation of powers principles inherent in our constitutional structure. Article I of the Constitution vests “all legislative Powers” in Congress, while Article II, vests “the executive Power” in the president. As we learned in high school government classes, Congress makes laws and the president enforces them.

Of course, the job of governing a complex, post-industrial society is not so simple. The rise of the Progressive movement at the turn of the 20th century, followed closely by the New Deal with its proliferation of new agencies, saw the emergence of the modern administrative state. As early as 1937, the gaggle of new agencies was dubbed the “headless Fourth Branch” of government.

In reality, much “lawmaking” takes place in this Fourth Branch. We even call agency rules having the force of law “legislative rules.” And these legislative rules both prescribe and proscribe much that affects our daily lives.

To give effect to the principle that the legislative power resides with Congress, the Supreme Court in 1928 articulated a test that, at least in theory, still stands. In J.W. Hampton Jr. & Co. v. United States, the Court said that when Congress delegates authority, it must “lay down by legislative act an intelligible principle” to which the agency “is directed to conform.” Recognizing the reality that agencies do, in some sense, make law, the intelligible principle test is intended to require that Congress—the branch most responsive to the popular will—make fundamental policy choices.

The Clean Air Act provisions challenged in Whitman direct the Environmental Protection Agency to set air quality standards at a level “requisite to protect the public health” with an “adequate margin of safety.” In reviewing the EPA’s new standards for ozone and particulate matter, the D.C. Circuit held that the agency had construed the statutory provisions “so loosely as to render them unconstitutional delegations of legislative power.” Stating that it couldn’t discern why, for example, the EPA had picked .08 ppm as the permissible ozone level, rather than some other level, the court held the new standards unlawful on the basis that “EPA lacks . . . any determinate criterion for drawing lines.” It remanded the case to give the EPA an opportunity “to extract a determinate standard on its own.”

In a unanimous opinion written by Justice Antonin Scalia, the Supreme Court reversed the appellate court’s nondelegation holding. First, pointing out that the D.C. Circuit’s remand had misconstrued the doctrine, Justice Scalia declared: “We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute.”

So far, so good. The purpose of a nondelegation inquiry is to determine whether Congress has fulfilled its constitutional responsibility, rather than to give the agency an opportunity to do Congress’ job. Turning to the statutory language, Justice Scalia found the Clean Air Act delegation “well within the outer limits of our nondelegation precedents.”

For him, the requirement to set a standard “requisite to protect the public health” with an “adequate margin of safety” complies with the requirement that Congress set forth an intelligible principle that confines the agency’s discretion.

I agree with Justice Scalia that the word “requisite” has a commonly understood meaning that at least implies the existence of some limits beyond which the agency may not go. The Clean Air Act language is similar in this respect to statutory provisions with limiting language that the Court previously has upheld, such as the direction to the attorney general to designate a drug a controlled substance if “necessary to avoid an imminent hazard to the public safety.”

Given the “outer limits” of the precedents, and the specific statutory language at issue, the Court’s rejection of the Clean Air Act nondelegation challenge is not that remarkable. This is particularly so in light of the fact that the industry litigants who raised the doctrine argued it only half-heartedly, mostly as a foil in an attempt to force a new interpretation of the statute that would require some form of cost-benefit analysis. Regrettably, the Court disposed of the nondelegation challenge in a way that, in effect, signals Congress that anything goes.

It is one thing to say that Congress need not spell out how much regulatory harm is “too much” in the sense of specifying a precise numerical value for a pollutant level (or even a range of values) “requisite” to protect the public health with an “adequate” safety margin. It is quite another to continue to refer approvingly to “outer limits” decisions from the heyday of loose New Deal thinking as models of sound jurisprudence.

For example, Justice Scalia cited the Court’s 1943 decision in National Broadcasting Co. v. United States as an example of the Court finding an “intelligible principle” in a statute authorizing regulation in the “public interest.” In NBC, Justice Felix Frankfurter brushed away a challenge to the Communications Act’s “public interest” standard on the basis that the standard “is as concrete as the complicated factors for judgment in such a field of delegated authority permit.” Read that again slowly and just try to glean any understanding of the “intelligible principle” at work.

Experts and Judges

The truth is that Justice Frankfurter thought the country had reached a stage in its development when only the agencies, peopled with “experts” schooled in the “science of administration,” could govern effectively. So, in NBC he applauded broad delegations of authority, admonishing that “our new social and industrial conditions cannot practically be accomplished by the old and simple procedure of legislatures and courts as in the last generation.” Frankfurter’s former colleague on the Harvard Law School faculty, James Landis, put it equally bluntly: Agencies should be granted “all necessary powers,” and we should not be “too greatly concerned with the extent to which such action does violence to the traditional theory of tripartite government.”

But we should be concerned. And for the very reason that Justice Scalia articulated in his separate opinion in Mistretta v. United States (1989):

It is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded: Except in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature.

The problem is, neither Justice Scalia nor a majority of the Court seem willing to retreat from those nondelegation doctrine decisions, like the NBC case, that do violence to the principle Justice Scalia rightly claims is so important. For at the same time that he reaffirmed in Whitman the intelligible principle requirement, Justice Scalia repeated his Mistretta lament that the nondelegation doctrine is not “readily enforceable” by the courts.

No doubt Congress often prefers to avoid politically difficult choices by delegating authority in vague terms—such as the public interest standard—to the agencies. That way, our elected representatives can take credit for agency actions they like and bash the bureaucrats for ones they don’t. They may even claim, like Landis and Justice Frankfurter during the heyday of the New Deal, that such legislation is intended to take “politics” out of the governing process.

MISSED OPPORTUNITY

But the Founders didn’t intend for Congress to escape responsibility for making tough policy decisions by giving the agencies unbridled discretion. Based on the specific statutory language at issue in Whitman, the Court’s actual holding on the nondelegation point may be defensible. That is, the “requisite to protect the public health” and the “adequate margin of safety” language in the Clean Air Act may truly convey an intelligible principle, unlike the open-ended mandates from New Deal-era statutes.

But by relying on cases affirming such standardless legislation, the Court missed an important opportunity. It could have signaled a rethinking of its nondelegation jurisprudence in much the same way, beginning in 1995 with the invalidation of the Gun-Free School Zones Act in United States v. Lopez, that it has reconsidered commerce clause jurisprudence that departed from constitutional norms.

If the Court would stop touting its earlier approval of such indeterminate delegations as the public interest standard, it might send Congress a message that not all delegations will pass constitutional muster. Just because the nondelegation doctrine is not “readily enforceable” shouldn’t mean it is never enforceable.

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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