Nondelegation AMA

Nondelegation:

Navigate through this content:

• Syllabus/Course Contents
• Video: Introduction to the Nondelegation Doctrine
• Reading 1: Gary Lawson, "Delegation and Original Meaning"
  • Link to the Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Reading 2: Eric Posner and Adrian Vermeule, "Interring the Nondelegation Doctrine"
  • Link to the Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Reading 3: A. J. Kritikos, "Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment"
  • Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Expert Interview: Joseph Postell
• Expert Interview: Mark Chenoweth
• Expert Q and A
• Further Reading

Nondelegation Question and Answer with the Ballotpedia Administrative State Team

On June 28th, 2021 we held a webinar entitled You Ask: Ballotpedia Answers: The Nondelegation Doctrine where members of Ballotpedia's administrative state team took audience questions related to the nondelegation doctrine.

Questions

1. The nondelegation doctrine isn’t explicitly mentioned in the Constitution. Where does the idea of the nondelegation doctrine come from?
2. One of our readings for this Expedition was “Interring the Nondelegation Doctrine” by nondelegation doctrine opponents Eric Posner and Adrian Vermeule. Posner and Vermeule refer to the nondelegation doctrine as a legal fiction. What do you think about that?
3. In another one of the papers for this Expedition, “Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment”, A.J. Kritikos mentions the line-drawing problem that occurs when trying to delineate a permissible delegation from an impermissible one. What are various ways people have suggested to help draw that line?
4. Could you elaborate on how nondelegation is applied in the state of Florida? What does this mean for nondelegation more broadly?
5. Professor Gary Lawson stated in his article for the course that the nondelegation doctrine may be dead as doctrine? Do you agree?
6. Has anyone ever considered modifying the Constitution to resolve the nondelegation debate?
7. Why do proponents of the nondelegation doctrine believe that public input in the rulemaking process is not sufficient to prevent tyranny or unconstitutional rules?
8. What’s an argument in support of the nondelegation doctrine you find most powerful?
9. What’s an argument against the nondelegation doctrine you find most persuasive?
10. What are some of the most important court cases about the doctrine?
11. If the nondelegation doctrine is not mentioned in the Constitution, how do originalists reconcile this with their focus on interpreting the Constitution as it was written?

Terms Mentioned:

Vesting Clause - In United States constitutional law, the Vesting Clauses are three provisions in the United States Constitution which vest the United States' legislative power in the United States Congress, the executive power in the President, and judicial power in the Federal judiciary of the United States.

Social Compact Theory - Social contract theory, nearly as old as philosophy itself, is the view that persons’ moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live.

Enumerated Powers - The term enumerated powers refers to the specific powers that the Constitution gives to each of the three branches of government. Along with the separation of powers, the interpretation of the enumerated powers is central to understanding debates around the nondelegation doctrine.

Necessary and Proper Clause - Refers to Article I, Section 8, Clause 18 of the Constitution:[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Court Cases Mentioned:

• A.L.A. Schechter Poultry Corp. v. United States - A case decided on May 27, 1935, by the United States Supreme Court in which the court invalidated Section 3 of the National Industrial Recovery Act of 1933 (NIRA) in violation of the nondelegation doctrine.
• Field v. Clark - A case decided on February 29, 1892, by the United States Supreme Court concerning the constitutionality of a congressional delegation of authority to the President as part of the Tariff Act of 1890, commonly known as the Mckinley Tariff. Several import businesses, including Marshall Field & Co., the defendant, argued that the tariff represented an unconstitutional delegation of legislative power to the President. The Supreme Court ruled unanimously that the tariff was constitutional, since it only delegated discretionary power to the President.
• Gundy v. United States - A 2019 U.S. Supreme Court case about whether the U.S. attorney general's authority to issue regulations under the Sex Offender Registration and Notification Act (SORNA) violated the nondelegation doctrine. The court upheld the delegation of power to the attorney general in SORNA, saying that it did not violate the doctrine.
• J.W. Hampton Jr. & Company v. United States - A case decided on April 9, 1928, by the United States Supreme Court. It involved a delegation by Congress of the authority to adjust tariff rates to protect American business and the president's exercise of that authority. The Supreme Court affirmed the ruling of the United States Court of Customs Appeals, holding that Congress did not violate the Constitution because the authority and discretion delegated to the president was not legislative in nature.
• Midwest Institute of Health, PLLC v. Governor - A case decided on October 2nd, 2020 by the Supreme Court of the state of Michigan. The ruling declared that the current governor, Gretchen Whitmer (D), had violated the Constitution's prohibition against delegating legislative authority.
• Panama Refining Co. v. Ryan - A case decided on January 7, 1935, by the United States Supreme Court. It involved the constitutionality of Section 9(c) of Title I of the National Industrial Recovery Act, which had authorized the President to "prohibit the transportation in interstate and foreign commerce of petroleum" in excess of state quotas, and to publish violators with fines and jail time. The Supreme Court reversed the ruling of the United States Court of Appeals for the 5th Circuit and ruled that Section 9(c) represented an unconstitutional delegation of legislative power to the President.
• Wayman v. Southard - A case decided on February 12, 1825, by the United States Supreme Court. It involved the rights of state legislatures to set rules and procedures in federal courts within their states. Chief Justice John Marshall authored the opinion, in which he argued that federal courts are not subject to the statutes of state legislatures. Furthermore, Congress' delegation of the power to create procedures for federal courts to those courts themselves did not represent an unconstitutional delegation of legislative power.

Papers Mentioned:

Nondelegation in the States" by Benjamin Silver

Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We’re Expecting" by Daniel Walters

People Mentioned:

Montesquieu - Montesquieu (1689-1755) was a French judge, man of letters, historian, and political philosopher. He is the principal source of the theory of separation of powers, which is implemented in many constitutions throughout the world.

John Locke - Locke (1632-1704) was an English philosopher and physician, widely regarded as one of the most influential of Enlightenment thinkers, and was important to the development of social contract theory.