Reading the Constitution by Stephen Breyer

Author:Stephen Breyer
Language: eng
Format: epub
Publisher: Simon & Schuster
Published: 2024-03-26T00:00:00+00:00

The Non-Delegation Theory

As I have noted, the courts have long held that the delegation of substantive rulemaking authority to executive agencies must be guided by an “intelligible principle” standard. That is, Congress may delegate regulatory authority to the executive branch so long as it supplies an “intelligible principle” to guide the executive’s use of regulatory discretion.30 So long as Congress does so, there is no serious risk that the executive branch will abrogate the authority of the legislative branch.31

Traditionally, then, the Supreme Court has not insisted upon an “intelligible principle” standard that is definite or strict. In Cargo of the Brig Aurora,32 for example, the Supreme Court saw “no sufficient reason” to declare unconstitutional Congress’s delegation of authority to the president to end trade embargoes against Great Britain and France after determining that they had “ceased to violate the neutral commerce of the United States.”33 And in J.W. Hampton, Jr., & Co. v. United States,34 the Supreme Court upheld a statute giving the president the power to impose tariffs that would “equalize the differences in costs of production” between the United States and other countries.35 These broad terms gave much leeway to the executive branch in the exercise of rulemaking authority yet still provided enough of an intelligible principle to avoid any constitutional issues.

But in 1935, in A.L.A. Schechter Poultry Corp. v. United States,36 the Supreme Court held that Congress had gone too far in its delegation. The statute created commissions for major industries. The members of those commissions consisted in large part of persons who worked in those industries, as executives, workers, or other private citizens. And it was the job of those commissions to write legally binding codes of “fair competition.”37 What is that? Both Chief Justice Charles Evans Hughes and Justice Cardozo explained why “fair” competition was not the opposite of “unfair competition.” They argued that there is no way to give that phrase any definite meaning.38 Put that fact together with the fact that, not government, but private individuals in an industry will set their own code, and we have what Justice Cardozo called “delegation running riot.”39 The Court struck the statute down.40 But the Court quickly abandoned Schechter’s fairly strict non-delegation rule, returning to a looser and more workable version of the intelligible standard.41 Indeed, aside from Schechter and one other case in 1935,42 the Court has never found a delegation to an agency of rulemaking power to have gone too far.43

Recently some judges have urged the courts to return to the non-delegation theory of Schechter—this time giving it teeth.44 Such an approach might, for instance, require Congress to delegate with such specificity that an agency need only “fill up the details,”45 or allow Congress to make application of a law “dependent on executive fact-finding,”46 or assign “non-legislative”47 responsibilities to other branches. In a recent case, the Fifth Circuit embraced this sort of robust non-delegation theory.48 But there are multiple problems with such an approach. One is historical—while enthusiasts of a robust non-delegation theory such

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