This Essay suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law "right," for nondelegation doctrine--at least as traditionally stated--does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than continue to use nondelegation as a stalking horse.
If Academy Awards were given in constitutional jurisprudence, nondelegation claims against regulatory statutes would win the prize for Most Sympathetic Judicial Rhetoric in a Hopeless Case. At the end of the nineteenth century, Justice Harlan, writing for a majority of the Supreme Court, declared: "That congress cannot delegate legislative power ... is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." (1) At the beginning of the twenty-first century, Justice Scalia, for a unanimous Court, insisted: "Article I, [section] 1, of the Constitution vests '[a]ll legislative Power herein granted ... in a Congress of the United States' ... [and] permits no delegation of those powers." (2) Yet in both these cases--and in virtually every intervening delegation challenge--the court sustained the statute at issue. (3) Indeed, Justice Scalia's opinion, which followed an array of interesting and sophisticated D.C. Circuit opinions debating the constitutionality of delegating authority to the EPA to set national ambient air quality standards, (4) is one of the blandest, most pedantic opinions the Justice has ever penned. He stops just short of consigning this ostensibly vital and unqualified constitutional principle to the netherworld of nonjusticiability. (5) Like the Ninth Amendment and the Guaranty Clause, nondelegation appears to be a constitutional lost cause. (6)
The courts' hesitance to enforce nondelegation, however, does not deter challenges to the legality of regulatory delegations. Symposia devoted to the debate appear with regularity, (7) and nondelegation articles often appear in symposia on other topics as well. (8) Earlier this year at a conference on presidential power, Judge Ginsburg reiterated his conviction that delegations such as those in the Clean Air Act are constitutionally unacceptable and deprecated what he views as judicial abdication to legislative judgment. (9) In remarks concluding the conference, Professor Steven Calabresi proposed forcing Congress to reconsider the scope of hundreds of federal programs by treating the legislative veto provisions that commonly accompanied regulatory delegations before INS v. Chadha (10) as nonseverable. (11)
This Essay reflects on the remarkable durability of nondelegation arguments. It begins by exploring why the legal case against delegation is not sufficiently robust to account for the persistence of the nondelegation debate in the face of nearly two hundred years of rejection by the courts (12) and political branches. It suggests that the controversy endures because nondelegation offers a vehicle for pursuing several serious concerns about federal regulation. Each of these concerns at least arguably implicates constitutional values, and all arise from the cumulative effect of Congress's practice of broad delegation over time rather than from the act of delegating itself. As a simultaneously time-honored and perennially unpersuasive framing, nondelegation provides a constitutional home for these concerns but ultimately prevents the kind of direct engagement on the merits that they deserve.
The existence of a constitutional nondelegation principle is typically accepted as given, so the focus of debate moves immediately to whether the existing doctrinal approach correctly operationalizes this principle. …