Academic journal article Northwestern University Law Review

Irrational Fears: The "No Law to Apply" Doctrine vs. the Real Culprit of Unconstitutional Delegation

Academic journal article Northwestern University Law Review

Irrational Fears: The "No Law to Apply" Doctrine vs. the Real Culprit of Unconstitutional Delegation

Article excerpt


The ability of Congress to delegate authority1 in this country has existed for nearly two-hundred years.2 However, it was not until J.W. Hampton, Jr. & Co. v. United States3 that any official edict developed to regulate congressional delegation. In Hampton, the Supreme Court mandated that Congress could indeed delegate authority, but that there were limitations.4 Writing for a unanimous Court, Chief Justice Taft stated, "[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power."5 Hence, the birth of the nondelegation doctrine; Congress could delegate power as long as it provided a reasonable standard by which to judge the abrogation.

In the 1930s, the Supreme Court used the nondelegation doctrine to strike down two provisions of power, because Congress failed to state any standards by which the delegation of authority could be judged.6 It has now been over sixty-five years since any delegation of authority has been declared unconstitutional.7 In fact, many scholars have debated the existence or viability of the nondelegation doctrine. Erwin Chemerinsky notes:

Although the Court says that when Congress delegates its legislative power it must provide criteria to guide the agency's exercise of discretion, all delegations, even without any criteria, have been upheld. Undoubtedly, this reflects a judicial judgment that broad delegations are necessary in the complex world of the late twentieth century and that the judiciary is ill-equipped to draw meaningful lines.8

Given this habitual deference to congressional allocation, the Court's ruling to bypass judicial review of agency decision-making is unsurprising. In Citizens to Preserve Overton Park, Inc. v. Volpe,9 the Court interpreted § 701(a)(2) of the Administrative Procedure Act10 (APA) to indicate that judicial review was precluded "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'"11 Interestingly enough, the principle of the "no law to apply" doctrine was pure dicta in Overton Park as the Court recognized that "[p]lainly, there is 'law to apply' and thus the exemption for action 'committed to agency discretion' is inapplicable."12 The Supreme Court has been true to its word in the past three decades, applying the doctrine in the rare circumstances where the Court found no reviewing boundaries.

Even though its use has been rare, the "no law to apply" doctrine, oftentimes referred to as "committed to agency discretion,"13 has caused some to worry that the Court wrongly abdicated judicial authority that gives a green light to Congress to violate the nondelegation standard.14 However, these worries are unfounded.

The "no law to apply" doctrine is in all actuality a charade. Concerns that the Supreme Court may have renounced judicial control fail on two levels. First, these concerns presume the doctrine is truly being used in substance; however, the doctrine is more of an apparition-a nonexistent specter-and should not be a cause for worry. Second, any fear of loopholes in judicial review must focus on the forlorn and nonexistent state of the nondelegation doctrine. Its obsolete condition generates well-founded doubts concerning separation of powers and the abandonment of judicial authority. Therefore, heavy scrutiny of the "no law to apply" doctrine must be redirected to the real culprit of unconstitutional appropriation-the nondelegation doctrine.

Part II of this comment will examine the "no law to apply" doctrine from its inception in dicta to the rare situations where the Court has used it, or more appropriately, fallen back on it. Through a detailed examination of case law, the Supreme Court's logic and reasoning will be called into serious question because of its meandering applications, which present a confusing doctrine not only to the reader, but also to many of the Justices. …

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