Scholar argues that courts should scrutinize delegations to the President more closely than those to agencies.
The U.S. Supreme Court has invoked the nondelegation doctrine—which provides that the U.S. Congress may not delegate its lawmaking power—to strike down a federal statute only twice, both times in 1935. Recently, however, several Supreme Court justices have signaled interest in reviving this long-dormant doctrine to curb Congress’s broad delegation of power to federal agencies.
In a recent article, David B. Froomkin, an assistant professor of law at the University of Houston Law Center, argues that a so-called revival of the nondelegation doctrine would be a “reinvention” inconsistent with the doctrine’s history. According to Froomkin, reviving the nondelegation doctrine to curtail agency authority would undermine and potentially “dismantle the entire administrative state.” Froomkin argues that instead of using the nondelegation doctrine to restrict congressional delegations to agencies, federal courts should use the doctrine to limit delegations to the President.
The U.S. Constitution grants legislative power to Congress alone. Under the nondelegation doctrine, Congress may not delegate its power to the President or agencies. Congress may, however, delegate authority to executive branch officials by statute if it includes an “intelligible principle” to cabin the discretion of the President or agency in carrying out the delegation.
The Supreme Court has found only two statutes to violate the “intelligible principle” standard. In both cases, the Court struck down a statute that granted broad regulatory powers to the President without providing sufficient limits on the President’s discretion in implementing the statute. As Froomkin notes, however, the Court has never employed the nondelegation doctrine to strike down a single delegation to agencies.
Froomkin observes that the Court has used the nondelegation doctrine to apply “a more stringent standard” for delegations to the President. Because the Court has applied the doctrine with greater force against delegations to the President than to agencies, calls to “revive” the doctrine to constrain agencies would actually “reinvent” it.
Proponents of reviving the nondelegation doctrine argue that its “demise” has led to the expansion of the administrative state’s powers. Froomkin challenges this conclusion, arguing that “the modern administrative state is a testament to the success of the nondelegation doctrine, not evidence of its underenforcement.” Froomkin contends that after the Court last invoked the nondelegation doctrine in 1935, Congress “recalibrated its approach to delegation” and delegated to agencies with specialized expertise on particular issues. According to Froomkin, courts have not needed to invoke the nondelegation doctrine since 1935 because it is already functioning properly.
Froomkin argues that the nondelegation doctrine should not be changed, but proposes that the Supreme Court formalize “what the doctrine has been doing all along”: reviewing delegations to the President with more scrutiny.
Froomkin suggests that when courts review a delegation, they should begin at “Step Zero” by considering whether Congress has delegated authority to an agency or to the President. If Congress has delegated directly to the President, the courts should then analyze the statute under an “intelligible principle with bite” test that reviews the statute’s text with heightened scrutiny, ensuring that Congress identified specific conditions in which the President can act. On the other hand, courts should apply the deferential intelligible principle test when reviewing delegations to agencies.
The use of a Step Zero analysis by courts would serve as a check on delegations to the President, which are “particularly concerning,” according to Froomkin. He argues that, unlike delegations to agencies, which “diffuse power” across agencies, delegations to the President are more concentrated. Froomkin suggests that delegations to agencies promote deliberation among multiple agencies and officials with varying perspectives. Delegations to the President, in contrast, do not limit “the power of a single individual to make a policy unilaterally.
Froomkin argues that presidential actions are often subject to fewer procedural constraints and less oversight than agency actions. He explains that the Administrative Procedure Act’s prohibition on arbitrary and capricious agency action “serves nondelegation purposes” by requiring agencies to create evidence-based policies that meet Congress’s objectives. Because the President is not considered an agency, the Administrative Procedure Act does not apply to presidential actions. According to Froomkin, the lack of statutory procedural requirements for presidential actions necessitates greater scrutiny of delegations to the President.
Presidents, unlike agencies, engage in more “legally adventurous action,” Froomkin argues. He contends that although agencies often “act cautiously” within the bounds of a statute out of fear of litigation, Presidents may assume they have more flexibility to deviate from a statute’s delegation of authority. Froomkin suggests that Presidents have an even greater ability to act without “fear of congressional resistance” when a President’s political party controls Congress.
According to Froomkin, the nondelegation doctrine can function as a “guardian” of Congress’s legislative authority. If courts began invoking the nondelegation doctrine with greater force against delegations to agencies, however, the judicial branch would undermine congressional authority rather than preserve it, Froomkin cautions. He contends that applying the nondelegation doctrine to cabin delegations to the President, on the other hand, would support the separation of powers and ultimately prevent the President from engaging in policymaking as “a matter of personal will.”
