In one of the most interesting and potentially important cases on this Term’s Supreme Court docket, FCC v. Consumers’ Research et. al, the Court will take up a ruling in which the United States Court of Appeals for the Fifth Circuit invalidated several aspects of a federal regulatory scheme in which the Federal Communications Commissions (FCC) discharged its statutory duties to ensure universal telecommunications service. As the brief the United States filed with the Court explains, Congress by statute has required the FCC “to operate universal service subsidy programs using mandatory contributions from telecommunications carriers. [And] [t]he [FCC] has appointed a private company as the programs’ Administrator, authorizing that company to perform administrative tasks such as sending out bills, collecting contributions, and disbursing funds to beneficiaries.” The Fifth Circuit held that Congress violated the so-called nondelegation doctrine by authorizing the FCC to determine the amount that providers must contribute, and that the FCC also violated the nondelegation doctrine by using the Administrator’s financial projections in computing universal service rates.
Although the Supreme Court may end up resolving the case on technical grounds without reaching the Fifth Circuit’s nondelegation rationale on the merits, the recent Court’s seemingly recurrent interest in the nondelegation doctrine and related constitutional concepts makes this case one to watch closely.
Stripped down to its essence, the nondelegation doctrine is the idea that Congress cannot lawfully delegate or cede legislative powers to other institutions or actors. As I and other scholars have written, under the Necessary and Proper Clause of the Constitution, each constitutionally granted congressional power “implies a power to create authority under it sufficient to effect its purposes.” But for over 150 years, the Court’s decisions have been sprinkled with categorical statements that Congress may not relinquish any of its powers to enact legislation through grants to others, particularly federal executive officials. The first Justice John Marshall Harlan’s statement of this nondelegation principle in Field v. Clark is typical: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”
The Supreme Court has twice struck down federal legislation as having improperly delegated legislative power to the President, but both of these cases are almost a century old now, and came from a Court that was known for its systematically ungenerous attitude towards congressional legislation. Although the Court in recent years has, through its articulation and exposition of the so-called “major questions doctrine,” and in its repudiation last year of so-called Chevron deference, seemingly attempted to rein in broad statutory delegations of discretionary authority to the federal executive branch, the modern Court has not as of yet embraced a full frontal nondelegation attack to strike down a federal law. Indeed, since 1935, the Court has not invalidated a single congressional delegation of legislative authority to an administrative agency or the President, even though many grants of authority that have been upheld are arguably broader than those struck down in 1935. In 1974, when Justice William Douglas’s majority opinion in one case construed the fee-setting authority of a federal agency narrowly so as to avoid nondelegation problems, Justice Thurgood Marshall wrote:
The notion that the Constitution confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930’s, has been virtually abandoned by the Court for all practical purposes . . . The doctrine is surely as moribund as the substantive due process approach of the same era—for which the Court is fond of writing an obituary—if not more so.
The most likely explanation for this judicial reluctance to intervene is not hard to discern: almost all laws create some significant enforcement discretion in the executive branch, and drawing a principled line between allowable standard-guided authorizations of executive power, on the one hand, and impermissible standardless delegations to the executive branch, on the other, is well-nigh impossible for courts to do. As a result, the Court has simply said that Congress must lay down some “intelligible principle” by which the executive branch can determine how to enforce a law, and it has found every law that has come before it to have at least one such “intelligible principle.”
The FCC case pending before the Justices today involves two distinct nondelegation objections; one that Congress delegated too much power to the FCC and a second, related but distinct, allegedly problematic delegation from the FCC to a private actor (the Administrator).
To see how these two questions should be analyzed (and whether the analysis should be different for each), we must first look at where the nondelegation doctrine comes from. (Interested readers can consult earlier and more elaborate work I’ve published in the Vanderbilt Law Review, on which some of the ideas explained below are built.) The nondelegation doctrine is said to have both textual and theoretical underpinnings. Textually, Article I, Section 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). The theoretical justifications of the nondelegation doctrine stem from, as Professor Laurence Tribe has observed, “implicit constitutional requirements of consensual government under law.” As Tribe has explained, “American political theory finds legitimacy of government in the “supposed consent of the governed.” This notion of consent presupposes the possibility of tracing governmental exercise of power to a choice made by a “representative” branch that is “politically and legally responsible” to the People. Thus, the valid exercise of a congressionally created power depends upon the prior “adoption of a declared policy by Congress and its definition of the circumstances in which its command is to be effective . . . .”
But both the textual and theoretical justifications for a nondelegation principle are open to question. First, it is not clear why the term “vested” in Article I means nondelegable. After all, Article II provides that “[t]he executive Power shall be vested in a President of the United States of America,” yet no one doubts that the President may transfer executive authority to his underlings in the Executive Branch. (For example, a President doesn’t criminally prosecute defendants himself; he makes use of underlings in the Department of Justice to discharge this most executive of powers.) Moving from text to theory, why does the “traceability” requirement foreclose delegation? Why can’t we “trace” congressional delegations to the President back to Congress and hold it accountable accordingly? After all, as I just observed, the President delegates executive authority to unelected underlings, and yet we seem to believe that his accountability suffices under American democratic theory. Nor did “accountability” prohibit the People of the United States from delegating some of their sovereign power of self-determination to the federal government by ratifying the Constitution. The fact that the People have given temporary authority to federal institutions to govern on their behalf does not, under American democratic theory, mean that sovereignty has been “divested” from the People and permissibly delegated to the government.
Some might respond to my analogies by pointing out that the People are free to reclaim the power they have given to federal institutions through constitutional amendment, and that the President is generally (under unitary executive notions) free to oversee and reclaim authority he has given to his underlings at will. This is all true enough, but it suggests that delegations of power are not problematic per se, but that what might be driving at least part of the nondelegation concern in the Constitution is the (in)ability to reclaim power once delegated. This possibility is supported by seminal work done at the beginning of last century by Professors Patrick W. Duff and Horace E. Whiteside. These scholars attempted to uncover the origins of the Latin nondelegation maxim, “delegata potestas non potest delegari,” which most people understand to mean “delegated power may not be redelegated.” Their groundbreaking historical research established that the earliest forms of the common law agency nondelegation maxim—thought by many to explain much of the American constitutional nondelegation concern—were phrased somewhat differently: Delegated authority cannot “be so delegated, that the primary (or regulating) power does not remain with the King himself” (emphasis added). As Professors Duff and Whiteside conclude, the concern is that the “King’s power not be diminished by its delegation to others” (emphasis added). This reformulation focuses attention on one key aspect of the delegation problem: that delegation is more problematic when it is harder to reclaim.
This framing, focusing on the difficulty of retrieving delegated power, also jibes nicely with some recent scholarship on the framers’ expectations for and understandings of nondelegation ideas at the time of the founding. The authors of a 2021 Columbia Law Review essay argue that “far from reflecting a pervasive understanding that legislative power could not be delegated, the Founding Era evidence indicates the opposite.” Yet these authors do acknowledge that some founding-era thinkers, drawing on the influential ideas of, among others, John Locke, Thomas Hobbes, Francis Bacon, “did argue for one specific limitation . . . . On their account, what was prohibited was legislatures’ permanent alienation of legislative power without right of reversion or control.” Alienation—permanent dispossession—is, I think, another way of describing something that has been given in such a way that it can’t be controlled or retrieved.
This same distinction was employed by then-Solicitor General Robert Jackson in a brief the United States filed in a 1938 case discussed by an amicus brief in the pending FCC matter. According to Solicitor General Jackson: “It would appear elementary that no department can divest itself of the power thus vested in it. In other words, there can be no alienation of power. [But] [d]elegation . . . stops far short of divesting or alienation. . . . To turn over to a body created by and responsible to the Congress a defined and limited measure of power, or a power over a given subject or object, at all times subject to recall and supervision by Congress,” the brief went on to argue, “is in no sense a divesting or alienation of its power” (emphasis added).
A point that neither Jackson nor modern scholars seem to drive home, however, is that the President—as recipient of congressionally created power—can pose special problems. The Constitution vests all legislative power (that is, power to change basic federal governmental policy from the status quo ante) in a system of lawmaking that requires agreement by a majority of the House and the Senate and assent by the President, or (in the absence of presidential agreement) agreement by supermajorities in the House and Senate. Neither the House, nor the Senate, nor the President alone is constitutionally permitted to fashion new law/policy without working with one or both of these legislative partners. In this respect, the Constitution’s separation of powers is not so much a literal separation between but instead a mutual interdependence among lawmaking institutions. But when a President exercises delegated power in a way that might diverge from the understandings and expectations of the empowering Congress (and thus essentially embarks on new lawmaking unto himself), Congress cannot retrieve the power easily. That is because when Congress tries to reclaim broad delegations to the President (or agencies over which he exercises complete dominion), the President (who might be enjoying the delegation) can attempt to veto the proposed repeal law, requiring a supermajority of both houses to overcome. Thus, delegated power that took only 50+% of both houses of Congress (along with a willing presidential recipient) to create may require 67% of both houses to reclaim. The fact that the President wears two hats—as recipient of delegated power and as decisionmaker (via the veto) in attempts to rein in that power—means that delegations to the President (and entities he controls) can be particularly dicey, at least from one vantage point. (Solicitor General Jackson does suggest delegations to the President are uniquely problematic, but in that suggestion he seems to distinguish the President from executive agencies that the President controls. Such a distinction between the President and agencies he controls wouldn’t seem to make sense if the key question is whether the recipient of the delegation can frustrate efforts to manage and retrieve the delegated power.)
By contrast, a (legitimate) concern over retrieval would suggest that delegations to private actors are in some ways less problematic than delegations to the President. Private actors have no formal role to play in efforts by either federal agencies or by Congress to retrieve the delegated power. There are, of course, some ways in which delegations to private actors raise distinct constitutional problems that must be taken into account. Private actors (unlike the executive branch) have virtually no public accountability, and Congress may be too busy to address their misdeeds by repealing legislation. Moreover, and related, regulation in the hands of private actors often raises profound conflict-of-interest and anti-competition problems, with some market participants improperly empowered to make rules governing competitors. But these problems can be addressed without resort to the nondelegation problem; if private actors are wielding government power in ways that are unfair to other private actors, the Due Process and Equal Protection Clauses of the Constitution are the appropriate vehicles. And due process might be better than the nondelegation doctrine for these purposes.
One reason for this starts with the recognition that states have nondelegation doctrines that often mirror the federal approach. Indeed, state constitutions usually have the same kind of text (e.g., all legislative power is vested in a legislature and all executive power is vested in a governor) and theory as the federal Constitution, giving rise to doctrine substantially similar to federal law. When we think about application of nondelegation ideas at the state level, we see that due process review, which invokes an explicit balancing of interests, is the right kind of contextual approach to discern problematic delegations (such as giving General Motors a right to regulate car safety standards for its competitors, to use one example) from unproblematic delegations (such as a minister being empowered to facilitate a civil marriage). If we use an uncompromising nondelegation doctrine instead of due process, the system would lack the flexibility to distinguish true problems—where delegation creates harm to the interests of third-parties—from formalistic ones, where regulatory or implementation power may technically be performed by private actors, but in settings where such privatization does no real harm.
The FCC case presents an interesting variation on these themes. Certainly it would seem the FCC can reclaim power conferred to the private Administrator without the private Administrator having any formal veto authority. And even the statutory delegation to the FCC in the first place may not be particularly problematic, partly because the FCC is considered by many to be an “independent” agency whose membership and regulatory decisions are not fully within presidential control. If that is true, then there is less reason to be worried about broad delegations to it; if Congress seeks to reclaim the delegated authority, there is no reason to believe the President (who himself isn’t calling the shots at the FCC) would exercise the veto in a problematically power-aggrandizing way.
All of this may at least suggest the Fifth Circuit erred on the merits. But my objective today is not to weigh in on precisely how the FCC case should be decided (which would require much more thought and explanation), but rather to offer my hope that the Court will be sensitive to some of the broader constitutional considerations I identify if the Justices do end up considering the nondelegation questions on the merits.
