Ron Cass, former dean of Boston University School of Law and President of Cass & Associates, published a paper entitled, “Delegation Reconsidered:  A Delegation Doctrine For The Modern Administrative State.”  The paper may be found here

The “delegation doctrine,” also referred to as the “non-delegation doctrine,” is usually defined as the general principle that one branch of government (e.g. the legislature) may not “delegate” or give up its constitutional responsibilities to another branch of government (e.g. the executive branch), an administrative entity, or a private entity; to do so would be a violation of separation-of-powers.   

The paper’s main argument is that, when analyzing delegation doctrine cases, the Court should not use the “intelligible principle” test from J.W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394 (1928) and should not focus on the scope of the authority granted.  The paper explains that, post-Hampton, the Court examined whether Congress accompanied a delegation of power with ascertainable and understandable instructions, which caused the Court to uphold very broad and generalized language.  Examples of such language include “unduly or unnecessarily complicated,” “unfairly or inequitably distribute,” “generally fair and equitable,” “requisite to protect the public health,” “adequate margin of safety,” and regulation in the “public interest.”

The paper argues that the Court instead should focus on the type of authority granted and to whom it was granted, and that the Court should examine whether a delegation of power was proper and appropriate for executive action.

The paper is, in part, a response to the Court’s March 9, 2015 opinion, Dep’t of Transp. v. Ass’n of Am. R.R.., 575 U.S. _____ (2015).  In American Railroads, a unanimous Court ruled that, for constitutional purposes, Amtrak is “a federal actor or instrumentality,” even though 49 U.S.C. § 24301(a)(3) plainly states that Amtrak “is not a department, agency, or instrumentality of the United States Government.”  The paper cites Justice Alito’s and Justice Thomas’s separate concurrences as indicators that there may be at least two votes to grant certiorari on a suitable delegation doctrine case.  As Justice Alito wrote, “Liberty requires accountability.  When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences.”  And, as Justice Thomas noted, “We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom … At issue in this case is the proper division between legislative and executive powers.  An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution.”

The paper counts only two cases in which the Supreme Court used the delegation doctrine to overturn laws:  Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) and A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 395 (1935).  The paper is timely because proper judicial examination of the delegation doctrine is perhaps even more important today than during the New Deal era because (1) today, Congress is more willing to delegate its constitutional duties, or ignore executive branch encroachment on those duties, than ever before, in part perhaps because many representatives and senators wrongly believe that doing so allows them to escape responsibility or blame for any adverse consequences of federal government action; and (2) today’s executive branch administrative agencies seem more aggressive, more invasive, and more willing to ignore or bypass existing law, even in the face of scandal and investigation.

A re-examination of the Court’s current approach to delegation doctrine analysis also strongly encourages a re-examination of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), which many have argued opened the gates to an unfettered, enormous administrative state.

Cass’s paper raises very important issues, though it will not be easy to convince the current Court to re-examine Hampton, the “intelligible principle” test, and/or Chevron.  As James Madison wrote in The Federalist Papers, No. 37:  “Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces:  the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches.”