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Arguments in favor of the nondelegation doctrine, and against delegation
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Gary Lawson wrote in 2001, "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 to support the nondelegation doctrine (or, conversely) against delegation of legislative powers to executive branch agencies.
There are four main types of argument against delegation.
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Delegation violates the separation of powers
- Claim: the three governmental powers are distinct, and should be treated that way
- Claim: It was the goal of the framers to restrain governmental abuse and promote liberty through a robust nondelegation doctrine
2. Argument: Delegation undermines public accountability
3. Argument: Delegation is wrong because it is unconstitutional
- Claim: It is forbidden by the Vesting Clause
- Claim: Nondelegation is a universally recognized principle
4. Argument: Delegation violates social compact theory
Delegation violates the separation of powers
This argument against delegation says that when a legislature delegates authority to an agency that allows that agency to promulgate policies (rather than the legislature itself promulgating the policies), this is wrong because it violates the doctrine of separation of powers. Under the separation of powers doctrine, three powers (executive, legislative and judicial) need to be separated in order to restrain governmental overreach and the abuse of power. Agencies are part of the executive branch. If the legislature delegates power to an agency to promulgate policies, the separation-of-powers argument says that this is wrong because under the separation of powers, only the legislature can or should make policies and laws rather than surrendering any of that power to the executive branch agency. On this line of thinking, agencies and the executive branch in general can only implement laws and policies, not create laws and policies on their own.
A number of scholars and jurists have made separation-of-powers arguments against delegation. Their arguments typically go beyond saying “delegation is wrong because it violates the separation of powers” but, rather, extend into describing what it is about the separation of powers or delegation that creates this incompatibility.
There are two main lines of argument to the effect that it is the doctrine of separation of powers that undergirds the nondelegation doctrine. They are:
- Each of the three governmental powers (judicial, executive and legislative) can and ought to be considered and exercised separately.
- It was the goal of the framers of the United States Constitution to restrain governmental abuse and promote liberty; one key way they attempted to do this was by separating out three governmental powers. If the legislative branch delegates their power to the executive branch to come up with rules, they are violating the separation of powers, and causing the very consolidation of power that the U.S. Constitution was framed to prevent.
These two claims are expanded on below.
Claim: the three governmental powers are distinct, and should be treated that way
- Jeremy Waldron writes, “the rationale of the separation of powers...is partly a matter of the distinct integrity of each of the separated institutions—judiciary, legislature, and administration.” He says that the “canonical literature of seventeenth and eighteenth century political theory” asserts the importance of “a qualitative separation of the different functions of government” but without providing a compelling justification. Waldron writes, for example, that Montesquieu’s justifications “were mostly tautologies.” He goes on to say that “modern constitutionalism has...taken the separation of powers for granted—meaning that it takes for granted that the separation of powers is necessary to avoid tyranny, but it does not explain why.” Waldron then argues that the separation of powers doctrine should be undergirded by perceiving that each task of government has its own distinct characteristics and integrity and that there should be “articulated government through successive phases of governance each of which maintains its own integrity” and “the principle of the Separation of Powers commands us to respect the character and distinctiveness of each of the three main functions of government.”[2]
- Travis Mallen writes, “The nondelegation doctrine is a function of separation of powers.” Mallen discusses the idea of “institutional competence” to undergird why the separation of powers matters. He says that only the legislative branch is competent to legislate: “Above all, legislating, in its truest sense, means that only Congress may make the initial policy choice to govern a particular field. This is what it means to be a legislator: deciding when, on what subject, and how to govern.” In this understanding, the delegation of power to executive branch agencies to make policy choices offends against an understanding of the separation of powers doctrine that is rooted in an understanding of institutional competencies.[3]
- In its 1996 decision Loving v. United States, the Supreme Court of the United States held: “[a]nother strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties.”[4] The idea that Congress has a specific duty to engage in legislation, which it ought not to forsake, is similar to the idea that at least that one branch of government has its own distinctive competency or inherent characteristic, which it ought to exercise.
- Gary Lawson argues, “Congress cannot transform lawmaking into execution (or judging) by the simple expedient of enacting a statute. ‘The executive Power’ and ‘[t]he judicial Power’ are formal categories, but they have substantive content. Something is not an exercise of executive power merely because it is carried out by an executive official; it is executive if it falls within the sphere of activity contained within the eighteenth-century understanding of ‘executive Power.’”[1] In response to scholars who claim that the Sweeping Clause authorizes delegation, Lawson states, “Congress cannot use the Sweeping Clause to authorize executive or judicial lawmaking if such a statute would not be a ‘proper’ means for carrying into execution governmental powers. Specifically, if a fully informed eighteenth-century audience would have viewed a statute purporting to authorize an executive agent to make laws as “improper,” then Congress does not have the enumerated power to circumvent the Constitution’s basic Article II and Article III limitations on executive and judicial activity.”[1]
Claim: It was the goal of the framers to restrain governmental abuse and promote liberty through a robust nondelegation doctrine
- Marci Hamilton defends nondelegation by pointing to how the Framers debated and their evident desire to find an appropriate balance of power that would prevent the governmental ills that the Framers wanted to prevent.[5] She writes, “the Framers’ debates focused on finding the appropriate balance of power” that would accomplish their goals. The Framers thought it was important to ask “whether each branch is checking the others in ways that are constructive for effective government and for liberty.”[5]
- Martin Redish argues based on a view of what it is that the Framers were trying to accomplish: “[t]he system of separation of powers was established in order to prevent undue accretion of political power in one branch. Abandonment of the nondelegation doctrine effectively permits the executive branch to accumulate an almost unlimited amount of power.”[6]
- Jennifer Mascott quotes Justice Kavanaugh from a 2018 speech to the Heritage Foundation: “[T]he structure of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are essential to protecting individual liberty. Structure protects liberty. And . . . courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits.”[7]
- Jennifer Mascott quotes Federalist 51 in her write-up of Gundy v. United States: “This case brings advocates for criminal defendant rights and individual liberties together with theorists who favor strong constitutional structural separation-of-powers constraints. One key way to effectuate a strong separation of powers is ‘by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.’ One outworking of these structural safeguards is the elected body of Congress making sure that legislation sets forth principles to guide the discretion of the executive branch as it carries out statutory commands. Continued commitment to the ‘separate and distinct exercise of the different powers of government’ is ‘essential to the preservation of liberty.’ The joinder of civil liberties groups and conservative structural constitutional advocates in this case underscores this relationship between a strong adherence to constitutional separation of powers and individual freedom.”[7]
Delegation undermines public accountability
This argument against delegation says that it is wrong because it allows unelected employees of agencies to make significant policy decisions. If the policy decisions are unpopular with the public, this argument says, the public can’t do much about it since it has no way to remove agency employees from their positions. The public can only “unhire” elected lawmakers and the head of the executive branch. According to this criticism, delegation allows elected lawmakers to evade or duck responsibility for any of the negative costs, consequences or problems associated with the policies set in place by agencies. It allows lawmakers to, in essence, collectively shrug off these negative consequences because they didn’t impose them.
The “evasion of public accountability” argument says that delegation is anti-democratic. It creates a situation where the public doesn’t have an effective way to punish the government for imposing harmful policies on the public.
Here are some versions of this argument.
Claim: Delegation shifts responsibility for policymaking from Congress to agencies
- David Schoenbrod writes, “Delegation has the political consequence of allowing officials to duck responsibility for costs” and “helps to insulate Congress and the White House from political accountability for supporting laws that are harmful to the broad public interest.”[8] Schoenbrod also makes a historical claim to the effect that the anti-democratic implications of delegation were deliberate: “The effort to square delegation with democracy is pervasively futile because the drive for delegation, from the beginning of the twentieth century, stemmed from a desire to reduce government’s accountability to ordinary voters.”[9]
- Martin Redish writes that the test of whether a legislature has attempted to evade political responsibility via delegation is whether a particular piece of legislation does or doesn’t allow voters to make relevant judgments. He calls this the “political commitment” test and says we should be able to ask “simply whether congressional legislation evinces a sufficient political commitment to enable the voters to judge their representatives.”[6]
- Jennifer Mascott says in her write-up of Gundy v. United States: “Requiring Congress to play the legislative role also makes Congress more accountable for enacting good laws. As the Cato Institute points out in its amicus brief, ‘why should Congress deliberate, make judgments, and stand accountable for each determination when it can license the executive to apply purportedly greater wisdom or technocratic expertise?’”[7]
- Joseph Postell, a visiting fellow for The Heritage Foundation, argued in a 2023 article that it is necessary to address concerns with the administrative state and limit delegation to administrative agencies, which could be achieved through the Regulations from the Executive in Need of Scrutiny (REINS) Act. He wrote, "Even the original defenders of the administrative state acknowledged that there were concerns that must be addressed in order to preserve the structure and character of our constitutional system. The basic idea of the REINS Act—that Congress should vote on the major rules that carry significant impact—is rooted in the core constitutional principle of self-government through elected representatives."[10]
- A 2016 report from the Competitive Enterprise Institute (CEI) argued that the separation of powers would be restored by making members of Congress more accountable for regulatory decisions. The report stated, "Members of Congress must face voters every few years. Agency officials do not, and they often enjoy decades-long careers under multiple administrations from both parties. If Members of Congress must publicly put their name to an unpopular or burdensome regulation, they are less likely to let it stand."[11]
- The CEI report also contended that the REINS Act would increase transparency in the rulemaking process because agencies would know that Congress had the final say before a new regulation could take effect: "REINS can provide common ground for conservatives and progressives to work together. Progressives tend to support an active approach to regulation, but that support depends on the content of each individual regulation. REINS would likely still let most, if not all major agency regulations pass—but with some democratic accountability."[11]
- Jonathan H. Adler wrote in a 2011 opinion piece in The Regulatory Review that accountability is needed in the regulatory process. He argued that this could be achieved through the REINS Act and said, "Delegation of regulatory authority to federal agencies is a fixture of modern administrative law. It is not going away any time soon. But the REINS Act would provide a measured – and wholly constitutional – means to bring under control a practice that undermines political control of and accountability for major regulatory policy decisions."[12]
Delegation is wrong because it is unconstitutional
According to this argument, delegation is wrong because it is forbidden by or is in some way inconsistent with the text of the U.S. Constitution or, if the delegation occurs in a state government, by that state’s constitution.
Claim: It is forbidden by the Vesting Clause
The Vesting Clause is found in Article 1, Section 1 of the U.S. Constitution. It says, “[a]ll legislative powers herein granted shall be vested in a Congress.”
Scholars who argue that the Vesting Clause forbids delegation say that the appearance of the word “shall” in this constitutional text implies that Congress alone is to exercise the legislative powers that are enumerated in Article 1.
Here are some examples of this argument:
- Gary Lawson writes, “The Constitution clearly – and one must even say obviously – contemplates some such lines among the legislative, executive, and judicial powers. The vesting clauses, and indeed the entire structure of the Constitution, otherwise make no sense. The Constitution does not merely create the various institutions of the federal government; it vests, or clothes, those institutions with specific, distinct powers. The Constitution reflects a separation of powers in addition to a separation of personnel.”[1]
- Jennifer Mascott argues that since Article I vests in Congress all legislative powers, no other federal entity has authority to exercise those powers.[7]
Claim: Nondelegation is a universally recognized principle
According to the Supreme Court in Field v. Clark (1892), it “universally recognized” that Congress cannot “delegate legislative power” and this principle is “vital to the integrity and maintenance of the system of government ordained by the constitution.”[13]
Delegation violates social compact theory
Claim: The nondelegation doctrine is rooted in social compact theory
In "'The People Surrender Nothing': Social Compact Theory, Republicanism, and the Modern Administrative State", American legal scholar Joseph Postell argues that the nondelegation doctrine comes from social compact theory. Social compact theory argues that society grew out of an original voluntary agreement between individuals to live together and protect each others' rights.[14]
- Postell states that social compact theory "maintains that sovereignty–the power to create and establish governments and to vest them with power–resides in the people alone. Governments derive their just powers from the consent of the governed, who must agree to vest the government with its powers. Furthermore, social compact theory holds that the sovereignty of the people is inalienable. That is, the people may not transfer their power and responsibility to govern themselves to any other body. When they vest powers in a government, they are not giving their sovereignty away but merely delegating it to a trustee who acts on their behalf. Those officers who hold government power, consequently, are merely the temporary holders of power, rather than the new owners of the powers vested in them. The people, as the sole fountain of authority, delegate power to the government, but only in a limited way, connected to the specific ends for which the people designate that power to be exercised."[15]
- Postell likens social compact theory to a principal-agent relationship between the people and the legislature.[15] The people are the principal who have delegated their rulemaking ability to the legislature.[15] Unlike other principal agent relationships, the people are unable to approve of a further delegation of the legislative power.[15] He writes, "[A]ccording to social compact theory, only the people can delegate legislative power, and when legislative power is delegated by the people to their agents in the legislature, the legislature cannot delegate its powers away because legislative power was never fully alienated by the people."[15]
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
- ↑ Jeremy Waldron, "Separation of Powers in Thought and Practice", Boston College Law Review, Volume 54, Issue 2 (2013)
- ↑ Travis Mallen, "Rediscovering the Nondelegation Doctrine Through a Unified Separation of Powers Theory", 81 Notre Dame Law Review 419 (2005)
- ↑ Loving v. United States, 517 U.S. 748, 758 (1996)
- ↑ 5.0 5.1 Marci A. Hamilton, "Representation and Nondelegation: Back to Basics", 20 Cardozo Law Review, 807 (1999)
- ↑ 6.0 6.1 Martin Redish, "The Constitution as Political Structure", Oxford University Press, 1995, p. 142
- ↑ 7.0 7.1 7.2 7.3 Jennifer Mascott, "Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine", George Mason Law Review (forthcoming), November 2018
- ↑ David Schoenbrod, "Power Without Responsibility: How Congress Abuses the People through Delegation", Yale University Press, 1993
- ↑ David Schoenbrod, "Delegation and Democracy: A Reply to My Critics; Symposium - The Phoenix Rises again: The Nondelegation Doctrine from Constitutional and Policy Perspectives: Democracy and Delegation", 20 CARDOZO L. REV. 731, 732 (1999)
- ↑ The Heritage Foundation, "House to Vote to Reduce Power of Bureaucracy With REINS Act," June 7, 2023
- ↑ 11.0 11.1 Competitive Enterprise Institute, "REINing In Regulatory Overreach," November 15, 2016
- ↑ The Regulatory Review, "The REINS Act: A Constitutional Means to Control Delegation," July 25, 2011
- ↑ JUSTIA, "Field v. Clark, 143 U.S. 649 (1892)," accessed June 10, 2019
- ↑ Dictionary.com, "Social contract," accessed June 10, 2019
- ↑ 15.0 15.1 15.2 15.3 15.4 Missouri Law Review, "'The People Surrender Nothing': Social Compact Theory, Republicanism, and the Modern Administrative State," 2016
