Arguments against the nondelegation doctrine, and in favor of delegation
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Boston University School of Law professor Gary Lawson wrote in a 2001 law review article, "The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study."[1] This page captures the main arguments that have been advanced against the traditional interpretation of the nondelegation doctrine (or, conversely) in favor of delegation of at least some legislative powers to executive branch agencies.
The nondelegation doctrine is a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. That means that lawmakers cannot allow others to make laws.
There are eight arguments against the traditional nondelegation doctrine and in favor of delegation:
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: The Constitution does not explicitly forbid delegating legislative power
2. Argument: Rulemaking is not the same as lawmaking
3. Argument: U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds
4. Argument: Agency law rules permit delegation
5. Argument: Increasing complexity of society requires Congress to delegate to do its job
- Claim: Agency rulemaking is required to achieve Americans’ goals
- Claim: The American people want an active federal government
- Claim: Delegation makes the administrative state constitutionally mandatory
- Claim: Congress cannot effectively issue major rules
7. Argument: Advocates of the nondelegation doctrine really just oppose expansive federal regulations
- Claim: Statutes giving open-ended authority provide for the exercise of executive or judicial power
- Claim: Legislative power refers to the authority to cast a vote in Congress and not the authority to make law
The Constitution does not explicitly forbid delegating legislative power
Defenders of the traditional conception of the nondelegation doctrine argue that the idea comes from the separation of powers principle inherent in the U.S. Constitution even if the bounds of the doctrine do not appear in the text of that document. Other scholars look at the text of the Constitution and see the absence of explicit bans on delegation as a possible justification for the practice. This is expanded upon in the following claims.
Claim: The Constitution does not prohibit delegation
According to this claim, the absence of an explicit nondelegation doctrine in the text of the U.S. Constitution might mean that proponents of the doctrine are too strict.
- Cynthia R. Farina argues in a research paper, "The existence of a constitutional nondelegation principle is typically accepted as given, so the focus of debate moves immediately to whether the existing doctrinal approach correctly operationalizes this principle. But consider, for a moment, the basis for assuming that the Constitution forbids Congress to give significant policymaking authority to another entity, such as a regulatory agency. The Constitution’s text is of little help, for it says nothing explicit about delegating the power Article I confers.[2]
Claim: The Sweeping Clause permits delegation
According to this claim, the necessary and proper, or sweeping, clause of the U.S. Constitution allows Congress to delegate legislative authority to administrative agencies.
- Gary Lawson argues in a law review article that delegations could be constitutional if they were traceable to a grant of power in the Constitution.[1] He writes that the authorization for such statutes must "come, if at all, from the Sweeping Clause of Article I, which grants Congress power to ‘make all Laws which shall be necessary and proper for carrying into Execution’ all constitutionally granted powers. A number of modern scholars have indeed invoked this clause as a possible constitutional authorization to Congress to confer broad discretion on administrators.”[1]
- Cynthia Farina writes in a law review article that the sweeping clause allows Congress to delegate to others in order to carry "'into Execution' constitutionally conferred powers."[2] She says that critics of legislative delegation do not question the ability of the president to delegate to sub-agents even though Article II of the Constitution does not contain a similar clause.[2]
Rulemaking is not the same as lawmaking
Some who defend delegation make a substantive distinction between laws passed by Congress and rules developed by administrative agencies. This is expanded upon in the following claim.
Claim: Rulemaking is not a legislative power akin to lawmaking
Those who make this claim argue that agencies can make rules so long as Congress authorizes them. Only unauthorized rulemaking represents an unacceptable delegation of legislative power.
- Eric A. Posner and Adrian Vermeule claim in a law review article that agencies exercise legislative power only when they make rules without statutory (or constitutional) authorization.[3] Rulemaking authorized by Congress is not an exercise of legislative power and, therefore, is not an unlawful delegation of authority.[3]
U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds
Some argue that the court's reluctance to strike down statutes as violations of the nondelegation doctrine implies that the doctrine is not as robust as its defenders believe. This is expanded upon in the following claims.
Claim: Almost every nondelegation challenge has failed
According to this claim, those who challenge alleged delegations of legislative power in court usually lose, so the nondelegation doctrine might not be as strict as they think.
- Cynthia R. Farina states in a law review article that nondelegation claims against regulatory statutes should win a prize for “Most Sympathetic Judicial Rhetoric in a Hopeless Case” because judges have almost uniformly upheld challenged laws while professing devotion to the nondelegation doctrine.[2]
- Keith Whittington and Jason Iuliano report in a law review article a low success rate for nondelegation challenges.[4] Their analysis showed that 24 percent of state cases and 0 percent of federal cases invalidated statutes on nondelegation grounds before 1880.[2][4]
Agency law rules permit delegation
The American Law Institute (ALI), an independent organization of law scholars founded in 1923, aimed to "address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was." In 1933, ALI published a book called the First Restatement of Agency meant to clarify "the legal concepts and doctrines applicable to consensual relationships in which one person’s actions carry consequences for the legal position of another person." Some scholars point to that restatement of agency law as a justification for the delegation of authority by Congress. The following claim expands this point.[5][6]
Claim: The First Restatement of Agency supported delegation
- Cynthia Farina, writing in a law review article, cites the ALI First Restatement of Agency to claim that authority to conduct a transaction includes the authority to do acts incidental to it, usually accompany it, or are reasonably necessary to accomplish it.[2] She argues that appointing agents or sub-agents to perform tasks was reasonably necessary to accomplish Congressional purposes.[2] Farina says that agencies crafting rules act as sub-agents of Congress; therefore, they do not violate the nondelegation doctrine.[2]
Increasing complexity of society requires Congress to delegate to do its job
As technology changed the nature of the American economy first during the Industrial Revolution and later after the spread of the internet and smartphones, some argued that the federal government had to change to meet new challenges. Beyond that, scholars have argued that the American people support empowering administrative agencies to handle complex regulatory burdens through broad delegation. This idea is expanded upon in the following claims.
Claim: Agency rulemaking is required to achieve Americans’ goals
- Farina argues in a law review article that diverse policy concerns require decision making by agencies because the sheer size and complexity of the federal regulatory enterprise defeats rational, coordinated, democratically responsive decision making by Congress or the President’s staff.[2]
Claim: The American people want an active federal government
- Farina claims in a law review article that public opinion polls reveal solid and stable majority support for federal engagement in environmental, health and safety, and economic issues.[2]
Claim: Delegation makes the administrative state constitutionally mandatory
- Law professor Gillian Metzger argued the following point in a 2017 law review article: "Delegation comes with constitutional strings attached. Having chosen to delegate broad responsibilities to the executive branch, Congress has a duty to provide the resources necessary for the executive branch to adequately fulfill its constitutional functions."[7]
- "Put differently, the modern national administrative state is the constitutionally mandated consequence of delegation. To see why, begin with the Constitution’s requirement that the President shall “take Care that the Laws be faithfully executed.” It follows that the administrative capacity the President needs in order to satisfy the take care duty is also required. So far, few would disagree. What does that administrative capacity entail in the context of broad delegations? For starters, it means sufficient bureaucratic apparatus and supervisory mechanisms to adequately oversee execution of these delegated powers. It also requires sufficient administrative resources and personnel, in particular adequate executive branch expertise and specialization, to be able to faithfully execute these delegated responsibilities in contexts of tremendous uncertainty and complexity. Arguably, this means that professional and expert government employees are now constitutionally required as well, and perhaps also the civil service, insofar as such career staff are necessary to ensure expertise and institutional stability in agencies."[7]
Claim: Congress cannot effectively issue major rules
- See also: REINS Act
- The Office of Management and Budget argued in a 2023 statement that shifting rulemaking authority to Congress would create time-consuming hurdles in the regulatory process. The statement argued against passing the Regulations from the Executive in Need of Scrutiny (REINS) Act because it would undermine the regulatory process, according to Government Executive: "Congress has explicitly charged federal agencies with the responsibility and the authority to act, but the REINS Act of 2023 would undermine agencies’ efforts by inserting into the regulatory process an unwieldy, unnecessary, and time-consuming hurdle that would prevent implementation of critical safeguards that protect public safety, grow our economy, and advance the public interest."[8]
- A 2017 report from the Institute for Policy Integrity at the New York University (NYU) School of Law claimed that Congress cannot make the highly technical decisions necessary for good regulation. The report argued against the REINS Act, claiming that it would make it harder for agencies to protect the public and follow the law: "Preparing and issuing a major rule can take years of hard work by expert agency staff members. The agency must conduct a careful review of scientific evidence, respond to comments from the regulated industry and the protected citizens, and articulate their basis for the rule in the Federal Register. Congress, with its wider docket of issues and its relative lack of expertise on each given regulatory matter, is not well equipped to make these highly technical decisions."[9]
- The Public Citizen, a nonprofit advocacy organization, argued against the REINS Act in a 2017 article, claiming that it threatens the separation of powers and politicizes the regulatory process: "The REINS Act would inappropriately – but deliberately – inject political considerations into a regulatory process that is supposed to be based on objective agency science and expertise. Federal agencies employ personnel with policy, scientific, and technical expertise to produce smart and sensible regulations. Allowing Congress to have the final say on regulations would give lobbyists, special interest groups, and those who provide legislators with campaign contributions even more influence in shaping a rule."[10]
Allowing executive agencies to exercise the discretion legislative delegation confers lets them adjust to unintended consequences (unlike Article I strictures)
Some advocates of delegation argue that agencies can change rules with unintended consequences more easily than Congress can amend laws. According to the argument, when a law imposes burdens that Congress did not anticipate, it might take a long time to fix the problem. With agencies acting according to delegated authority, such problems might be resolved faster. This is expanded upon in the following claim.
Claim: Article I makes revising harmful legislation too difficult
- Cynthia Farina, in a law review article, argues that entrenched interests develop in response to legislation that might make it more difficult to repeal harmful legislation than it was to pass it in the first place.[2]
- Farina argues that less specificity in regulatory statutes lets agencies respond to unintended consequences without the rigorous procedural controls of Article I on legislation.[2]
Advocates of the nondelegation doctrine really just oppose expansive federal regulations
Cynthia Farina wrote in 2010 that it is "anxiety about the consequences of two centuries of statutory delegation to agencies that keeps the delegation debate alive." She claims that proponents of the nondelegation doctrine use legal theory to oppose a policy of expanding federal regulations. This is developed in the following claim.[2]
Claim: Nondelegation doctrine claims are really about opposing federal regulation
- Farina argues in a law review article that delegation made it possible to create a regulatory regime touching every significant aspect of social and economic life.[2] Those who oppose such regulations see delegation as a catalyst for federal intervention into the economy and local governments.[2] She argues that critics oppose delegation because of its effects.[2]
- Farina argues that opponents of expansive federal laws point to perceived nondelegation violations as avenues for Congress to avoid Article I, Section 7 requirements in order to pass more laws.[2] Without having to go through two legislative bodies and to receive a signature from the president, agencies are able to pass more rules.[2]
Statutes giving open-ended authority to executive or judicial actors are not actually delegations
Some arguments for delegation rely on narrow definitions of legislative power. When judges or agencies exercise discretion some argue that they are not acting in a legislative capacity. Others distinguish the power to vote in Congress from the power to institute rules governing private conduct. This is expanded upon in the following claims.
Claim: Statutes giving open-ended authority provide for the exercise of executive or judicial power
According to this claim, Congress may empower agencies to make laws without violating the nondelegation doctrine because agencies would be following that congressional direction.
- Gary Lawson states in an article, “[O]ne might say that statutes giving open-ended authority to executive or judicial actors are not actually delegations, because they simply call for the exercise of executive or judicial power in carrying out the congressional command to make laws.”[1]
Claim: Legislative power refers to the authority to cast a vote in Congress and not the authority to make law
According to this claim, agency rulemaking does not violate the nondelegation doctrine because agencies do not make rules by casting votes in the houses of Congress.
- Eric A. Posner and Adrian Vermeule state in a law review article that Congress cannot delegate legislative power.[3] Congress does not violate the nondelegation doctrine through delegations of authority—only through delegations of a lawmaker’s vote in Congress.[3] Therefore, legislative power does not refer to the authority to make the laws but only the authority to cast a vote on proposed legislation.[3] They write, “In their view, the ‘legislative power’ generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke’s maxim means no more than that the legislature cannot make third parties ‘legislators’ by giving them the power to vote in the legislature.”[3]
See also
Footnotes
- ↑ 1.0 1.1 1.2 1.3 Gary Lawson, "Delegation and Original Meaning", Virginia Law Review, Vol. 88, No. 2 (Apr., 2002), pp. 327-404
- ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 Cynthia R. Farina, "Deconstructing Nondelegation", Harvard Journal of Law and Public Policy, Vol. 33, No. 87, Cornell Legal Studies Research Paper No. 010-005, 2010
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 Eric Posner and Adrian Vermeule, "Interring the Nondelegation Doctrine," University of Chicago Law Review, Vol. 69 (2002)
- ↑ 4.0 4.1 Keith E. Whittington and Jason Iuliano, "The Myth of the Nondelegation Doctrine", University of Pennsylvania Law Review, 2017
- ↑ American Law Institute, "About ALI", accessed January 18, 2019
- ↑ Deborah A. DeMott, "The First Restatement of Agency: What Was the Agenda?", Southern Illinois University Law Journal, Vol. 32, 2007
- ↑ 7.0 7.1 Gillian E. Metzger, "1930s Redux: The Administrative State Under Siege," Harvard Law Review, Vol. 131, No.1, November 2017
- ↑ Government Executive, "The White House Threatens Vetoes Over Regulation Bills," June 6, 2023
- ↑ Institute for Policy Integrity, "The REINS Act Is Burdensome, Irrational, and Legally Questionable," June 2017
- ↑ The Public Citizen, "What is the REINS Act and why do we oppose it?" January 3, 2017
