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"Rulemaking as Legislating" by Kathryn Watts (2015)

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"Rulemaking as Legislating" (2015) is an article by American lawyer and professor Kathryn Watts arguing that the U.S. Supreme Court should explicitly recognize that Congress "routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do." Watts' article argues that there are unresolved contradictions in the Supreme Court's jurisprudence on the nondelegation doctrine, which forbids Congress from delegating its legislative power to agencies. She concludes that the best resolution to this issue would be for the court to reject the premises of the nondelegation doctrine as it has previously understood them and revise other administrative law doctrines (such as Chevron and Auer deference) to fit what she perceives as the reality of routine delegations of legislative authority by Congress to agencies.[1]

HIGHLIGHTS
  • Author: Kathryn Watts
  • Source: Georgetown Law Journal, Volume 103, 2015
  • Abstract: "Ultimately, this Article concludes that some key administrative law doctrines operate under the assumption that agency rules flow from delegations of legislative power, putting those doctrines in direct tension with the current nondelegation doctrine. In contrast, other key administrative law doctrines—consistent with the nondelegation doctrine—refuse to view agency rulemaking through a legislative lens. Thus, if the Court held that Congress constitutionally can and routinely does delegate legislative power, some central administrative law doctrines would need to be modified. Although these doctrinal changes would have their costs, this Article ultimately asserts that the changes would be normatively desirable." (p. 1,003)

    • Author

    Kathryn Watts is an American lawyer and professor. As of January 2018, she was the Jack R. MacDonald endowed chair and professor of law at the University of Washington School of Law. According to her faculty profile page on the University of Washington website, Watts' areas of research include administrative and constitutional law, presidential powers, and the U.S. Supreme Court. Below is a summary of Watts' education and career:[2]

    • Academic degrees:
      • B.S. (1998), Northwestern University, Evanston, Illinois
      • J.D. (2001), Northwestern University School of Law, Evanston, Illinois
    • Law professor and legal scholar
    • 2003: Awarded the American Bar Association Section on Administrative Law Award for Distinguished Scholarship

    "Rulemaking as Legislating"

    Watts argues that when Congress passes laws that create and empower administrative agencies, it "routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do." She writes that this conflicts with "the central premise of the nondelegation doctrine," which "prohibits Congress from delegating its Article I legislative powers." She believes there are unresolved contradictions in the Supreme Court's decisions dealing with the nondelegation doctrine:

    “
    When administrative agencies promulgate legislative rules, the rules look and feel much like congressionally enacted statutes, providing binding legal norms that govern nearly everything ranging from the quality of the air we breathe to the safety of the products we buy. Legislative agency regulations, for example, can bind courts and officers of the federal government, preempt state law, grant rights, and impose obligations enforceable by civil or criminal penalties. Yet despite the legally binding nature of legislative regulations, longstanding Supreme Court precedent refuses to embrace the notion that rulemaking constitutes an exercise of Article I 'legislative Powers.' Instead, the Court insists that Congress cannot delegate its legislative powers and that rulemaking activities by administrative agencies must constitute exercises of the 'executive Power' found in Article II of the Constitution. (p. 1,005)[3]     		”


    Watts' article evaluates how the nondelegation doctrine coheres with other administrative law doctrines, identifying what she views as contradictions among the doctrines and their assumptions about administrative rulemaking as an exercise of legislative power:

    “
    Ultimately, this Article concludes that some key administrative law doctrines operate under the assumption that agency rules flow from delegations of legislative power, putting those doctrines in direct tension with the current nondelegation doctrine. In contrast, other key administrative law doctrines—consistent with the nondelegation doctrine—refuse to view agency rulemaking through a legislative lens. (p. 1,003) ...


    For example, some central administrative law doctrines, including hard look review, procedural review, and Auer deference, fail to view agency rulemaking through a legislative lens as an exercise of lawmaking authority. This is consistent with the nondelegation doctrine’s central premise that Congress may not delegate legislative power. Yet it is in tension with other key administrative law doctrines—including Chevron deference, procedural due process, and the test used to define legislative rules—that at least implicitly recognize that agency rulemaking flows from a delegation of legislative power to agencies. (p. 1,059)[3]

    		”


    Watts concludes that the best resolution to these contradictions would be for the Supreme Court to reject the central premise of the nondelegation doctrine for the idea "that agency rulemaking constitutes an exercise of delegated legislative power." The court would also need to revise other administrative law doctrines to fit what she perceives as the reality of routine delegations of legislative authority by Congress to agencies:

    “
    Thus, if the Court held that Congress constitutionally can and routinely does delegate legislative power, some central administrative law doctrines would need to be modified. Although these doctrinal changes would have their costs, this Article ultimately asserts that the changes would be normatively desirable. Many of administrative law’s disparate doctrines would gain a more unified, coherent lens centered around legislative supremacy and congressional delegation, forcing courts to take more seriously the notion that agencies act as Congress’s delegate. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power. (p. 1,003)[3]     		”

    See also

    Full text

    Footnotes

    1. ↑ Georgetown Law Journal, "Rulemaking as Legislating," 2015
    2. ↑ University of Washington School of Law, "Kathryn Watts," accessed January 30, 2018
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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