As Robert VerBruggen noted on NRO the other day, a lot of conservative and libertarian legal thinkers are excited about the possibility that the Supreme Court will start reining in the congressional practice of granting chunks of legislative authority to unelected bureaucracies. VerBruggen uses the hard-to-escape terminology of “reviving the nondelegation doctrine” to describe this prospect. But as his own account suggests, and I’ve argued elsewhere, “revival” is the wrong term. Never in U.S. history has the Supreme Court acted as an important restraint on the legislature’s delegation of power.
Partial explanations for this fact may lie in the lack of an obvious constitutionally based line for the Supreme Court to draw between permissible and impermissible delegations (or, to put it another way, between impermissible delegations of legislative power and permissible creations of discretionary executive power) and in the political limits of the Court’s power. My American Enterprise Institute colleague Peter Wallison responded to my skepticism about a newly vigorous non-delegation doctrine by arguing that keeping the legislature in charge of legislation is sufficiently important to our constitutional structure that the Supreme Court must attempt to do it, notwithstanding the conceptual or political difficulties. He is persuasive on that point (I am admittedly not a hard sell).
The question remains: How should the justices overcome those difficulties? VerBruggen brings up one possible answer: They could start striking down delegations in small-bore cases that won’t generate much pushback. It seems to me, though, that this idea would lead to one of two possible dead ends. Either the Court would eventually build on its precedents about small-bore delegations to start taking on major bureaucracies, in which case it would merely delay the day of political reckoning. Or it would refrain from ever taking that risky step, which would yield the perverse result that Congress can delegate its power only over the most politically important issues. The Court would not, presumably, say as much; but I’m not sure what it would say as a respectable cover story.
Adam White, another AEI colleague of mine, has drawn a parallel between the center-right interest in judicial action against delegation and the center-left interest in judicial action against gerrymandering. In both cases, the argument goes that there’s a significant deformation of constitutional government that Congress lacks the incentive to correct; in both cases, judicial intervention is therefore thought necessary; but in both cases, the Constitution doesn’t provide a rule to guide the Court in intervening.
I’ll toss out another possible idea for the Court. Maybe it could treat the delegation of legislative authority as a sign that something has gone awry constitutionally, and intervene if other such signs also appear. So, for example, an agency that exercises delegated power over major questions and has slipped the leash of presidential control, or an agency that exercises such delegated power and is accused of due-process violations, would need to be reined in. I am not sure that’s a satisfactory answer to the problem; but I’m not sure a satisfactory answer exists.