The Federalist Society's Administrative Law and Regulation Practice Group's panel discussion at the 1998 National Lawyers Convention on the non-delegation doctrine featured lively debate on the prospects for its resurrection. Former White House Counsel C. Boyden Gray moderated the panel and introduced the topic with a brief discussion of the (in)famous benzene case, Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1979), which suggested a revitalization of the non-delegation doctrine. Generally, the non-delegation doctrine requires Congress to provide to administrative agencies sufficient standards to guide their actions so that a court can ascertain whether the agency implementing legislation has obeyed the will of Congress. In the benzene case, the Supreme Court restricted the ability of the Occupational Safety and Health Administration (OSHA) to implement the broad grant of authority given to OSHA by Congress, by requiring OSHA to make a finding of significant risk in promulgating its safety regulations. In contrast, noted Mr. Gray, the Clean Air Act gives to the Environmental Protection Agency (EPA) similar discretion to regulate pollutants, yet in litigation on the EPA standards, the regulations were upheld against non-delegation challenges. Where does that leave the non-delegation doctrine, Gray posited to the panel dead on arrival, or are there other signs of life?
The first panelist, David Schoenbrod of the New York Law School, argued that the non-delegation doctrine is alive and well. First, Professor Schoenbrod described the evils of broad delegations, arguing that delegation by Congress of its legislative authority to the executive branch vastly increases the amount of Federal regulation. He explained that Congress is able, through broad delegations, to take credit for bestowing rights but simultaneously is able to avoid the blame for imposing duties. Consequently, Congress has an incentive to launch more sweeping federal regulatory programs than if it were held strictly responsible for the laws enacted.
Second, Professor Schoenbrod argued that "life could go on without delegation." Without broad delegations by Congress, Schoenbrod asserted that "more would be done through private ordering, common law, and state and local rules." Schoenbrod cited as a means of achieving such a decentralized world the Congressional Responsibility Act introduced in 1997 by Senator Brownback and Representative Hayworth which calls for congressional enactment of agency rules.
Finally, Professor Schoenbrod argued that "progress is difficult, but possible." Schoenbrod explained that a "cataclysmic" change was not possible, but that "piecemeal progress" could be made in the courts. For example, he explained how the Supreme Court, although "ambivalent" on the subject, over recent years has appeared to be chipping away at broad delegations, citing INS v. Chadha, 462 U.S. 919 (1982), Loving v. United States, 517 U.S. 748 (1996), and, most recently, Clinton v. City of New York, 524 U.S. 417 (1998). Similarly, Congress, through "piecemeal" legislation such as the Taxpayer Protection Act introduced by Representative Gekas and Senator Ashcroft, can help re-establish the principle of non-delegation. Finally, Schoenbrod argued that, although academic, government, and media leaders have begun embracing the principle of non-delegation, what is really needed for the establishment of the principle is "broader public support"; he noted that the "basic principle" that "law-makers should have to take responsibility for the laws has the potential for great visceral public appeal."
The next panelist, Richard Pierce, of the George Washington University Law School, argued that, except for a glimmer of life in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935), which he deemed to be "two really flaky cases," the non-delegation doctrine never has been alive. In Pierce's view, the doctrine never has existed, despite the "lip service" that the Supreme Court from time to time gives to it. In short, we are dealing not with "resurrection" but with "chivalry for the first time created."
Indeed, not only has the doctrine never existed, but, according to Pierce, it should not exist. First, in his view, it is not "justiciable." There is no standard that can be applied to the doctrine to implement it because judges would be incapable of distinguishing between non-delegable "fundamental" policy decisions and other, delegable policy decisions. In summary, because the non-delegation doctrine is not enforceable under any coherent standard, its enforcement would not be guided by any standards at all, other than by the rule of ipse dixit. Further, actually enforcing the version of the non-delegation doctrine that holds that Congress cannot constitutionally delegate its policy-making powers would require deleting eighty percent of the United States Code, which simply is "not going to happen."
Professor Pierce also argued against enforcing the non-delegation doctrine because specifically drawn legislation is undesirable. Pierce cited the "Delaney clauses" as an example of Congress legislating with too much specificity. There, because of legislation prohibiting the marketing of food additives and drugs that posed any risk of causing cancer, thousands of beneficial and desirable substances would not have been marketed but for "a bunch of legal subterfuges" implemented by "clever" regulating agencies to avoid the restrictions imposed by the specifically-drafted legislative clauses.
Finally, Professor Pierce argued that development of other administrative law doctrines has made the non-delegation doctrine unnecessary. For example, the Chevron doctrine eliminated the judicial lottery by resolving ambiguities in legislation to confer broad discretion in agencies. Before Chevron (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)), Congress would grant broad discretion to the agencies, take credit for the legislation, and gamble that it could win in court if and when the agency went too far. Chevron's, doctrine of upholding administrative action in cases of legislative ambiguity, however, gave Congress a "very powerful incentive" to limit the discretion given to the agencies, particularly when the legislative and executive branches are divided between the political parties.
Finally then, Senate Legal Counsel Thomas Griffith, focused on the recent Supreme Court opinion in the line-item veto case, Clinton v. City of New York. He concluded that the Supreme Court should have used that case to clarify the status of the non-delegation doctrine.
For the true believer Federalist, according to Griffith, his faith is in the separation of powers, and the non-delegation doctrine gives expression to the Federalists' "reverence for the Framers' attempt to divide the functions of governance between the branches so as to disperse the centers of power and stymie the age-old human tendency toward centralization of governmental power." But, those Federalists who place their faith in the non-delegation doctrine to protect the separation of powers may be, in the words of the Apostle Paul, the most to be pitied. In short, Mr. Griffith argued that the non-delegation doctrine Ais not dead. It is, by no means, yet resurrected. Its soul is in Hell.
Mr. Griffith argued that the Supreme Court "missed a wonderful opportunity" to resurrect the doctrine, in the Clinton v. City of New York line-item veto case. He explained that it was crucial to understand that the Line Item Veto Act was not, in fact, a line item veto, but rather was a permissible delegation of spending and taxing discretion from Congress to the President. However, the Supreme Court viewed the case as creating a presentment issue under Article I of the Constitution, rather than a delegation issue under Article II. Accordingly, the Act was struck down as a violation of the Article I presentment clause procedures.
Mr. Griffith, a self-admitted "bitter man" over the result, was greatly discouraged by how Congress lost the case. He emphasized how the majority in Clinton v. City of New York was, in the words of Justice Scalia's dissent, "faked out" by the title of the Act, and viewed it as giving the President impermissible authority to make a unilateral appeal of previously-enacted statutes. He faulted the majority for "simply fail[ing] to address, in any adequate fashion," the non-delegation doctrine. He noted that some Senators secretly had hoped that the Court would strike the Act down on those grounds, and suggested that the "major learning" of the case is that, if Congress and the executive branch can avoid the appearance of altering the Article I procedures, then there is little to restrain what Congress can do in delegating.
Mr. Griffith sought solace in the dissenting opinions. Mr. Griffith was disappointed by the dissenting opinion of Justice Scalia, whom Mr. Griffith faulted for avoid[ing] the delegation debate altogether, because Justice Scalia apparently would allow virtually no limit on Congress's delegation authority over spending matters. On the other hand, Justice Breyer, in his dissenting opinion, would have upheld the Line Item Veto Act as being within the mainstream of the non-delegation doctrine, because the Act places rather significant limits on the President's discretion, which satisfies the intelligible principles standard under the non-delegation doctrine (see J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)). Mr. Griffith conceded that, as demonstrated in the views of Justices Scalia and Breyer, there may be "no clear resolution to the [separation-of-powers] debate," and that, to the dismay of many in the audience, the Framers may have "had no coherent and generally shared view of separation of powers."
In conclusion, as with the "miraculous and unprecedented act of God" that resurrected the body of Jesus, Mr. Griffith predicted that something "of the same magnitude" would be required to resurrect the non-delegation doctrine.
A spirited discussion, including questions from and exchanges with members of the audience, ensued, and it remained unclear whether, after Clinton v. City of New York, the non-delegation doctrine would be resurrected, Phoenix-like, from the depths of Hell.