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Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States." Critics argue that, given this mandate, too much of the lawmaking power is exercised by unelected people in unaccountable agencies. These bureaucracies make “law" by both formal and informal regulation, and oftentimes both enforce their own laws and adjudicate their own enforcement actions. Some have even been given self-funding mechanisms, which removes them from even the check of Congress's appropriation power. Proponents of such delegation argue that administrative agency staff have expertise in myriad substantive areas that legislators could never obtain, and that what critics describe as a lack of accountability is actually insulation from political pressure and influence. They assert that delegations of lawmaking power are permissible if Congress provides an “intelligible principle" setting the boundaries within which the agencies are permitted to operate. The Supreme Court has, under this standard, upheld such broad grants of power to the agencies as legislative direction to regulate “in the public interest," for the “public convenience, interest, or necessity," to do what is “just and reasonable," or to prevent “unfair methods of competition." In other words, critics assert, the “intelligible principle" limitation on delegations of lawmaking power is no limitation at all. The last time the Court struck down an act of Congress because it delegated lawmaking power was in the 1935 case of Schechter Poultry Corp. v. United States, and that case involved a double delegation, first to the executive and then to a committee of private businesses.

The phenomenon of agency officials making most of the nation's laws expanded when the Court decided, in Chevron v. Natural Resources Defense Council, (1984) to start deferring to agency interpretation of ambiguous statutes. Several members of the Court have started to question this state of affairs, and this past term, in three separate opinions, Justice Thomas called on the Court to revisit both Chevron deference and the demise of the non-delegation doctrine. Others fear an over-empowered, unelected judiciary. One response to reliance on Chevron deference was offered by Chief Justice Roberts in the King v. Burwell case. There, the Chief (writing for a 5-4 majority) declined to defer to the agency's interpretation of the statute, and instead applied Chevron deference to the Court's own interpretation. This panel will address the present state of affairs and the possible roads forward.

This panel was presented at the 2015 National Lawyers Convention on Thursday, November 12, 2015, at the Mayflower Hotel in Washington, DC.

Federalism: Deference Meets Delegation: Which is the Most Dangerous Branch?
3:45 p.m. – 5:15 p.m.
Grand Ballroom

  • Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Hon. C. Boyden Gray, Boyden Gray & Associates and former U.S. Ambassador to the European Union
  • Mr. Neal K. Katyal, Hogan Lovells and former Acting U.S. Solicitor General
  • Mr. David B. Rivkin, Jr., Partner, BakerHostetler
  • Moderator: Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit

The Mayflower Hotel
Washington, DC