Six Degrees of Delegation

“If a tree falls in the forest and no one is around to hear it, does it make a sound?”

That late-night philosophical puzzle, pondered in many a college dorm room, has its analogue in a persistent puzzle in administrative constitutional law: If the Supreme Court has never invoked the nondelegation doctrine to strike down a statute in over eight decades, even when approving numerous laws that seemingly offend that doctrine’s “intelligible principle” requirement, is the doctrine still alive?

Both proponents and opponents of the modern administrative state seem to agree that the answer is “no.”

But viewing the nondelegation doctrine as dead, or at least on life support, only follows from a simplistic, unidimensional view of the doctrine.  Once properly understood in its full dimensionality, the nondelegation doctrine and its disuse no longer seem so puzzling.

The key to a multi-dimensional understanding of the nondelegation doctrine rests with two oft-overlooked words in Article I of the Constitution—”herein granted”—and with what could be called the six degrees of delegation which help when applying those words.

No one seriously disputes that Article I vests certain legislative powers in Congress. The vesting language of Article I does provide the source of the nondelegation doctrine, which limits Congress’s ability to transfer its powers to executive officers and administrative agencies. But Article I’s vesting clause speaks of more than just the vesting of “all legislative powers” in Congress. It vests in Congress “all legislative powers herein granted”—meaning that what Congress cannot transfer to others is not simply any power to make binding law. Rather, what Congress cannot transfer are those powers enumerated in Article I, such as the power to regulate interstate commerce.

To understand what such a limitation on a congressional transfer demands, courts need to take into account all that defines an enumerated power like the one of regulating interstate commerce. Such a legislative power comprises six main characteristics, each of which the Supreme Court has recognized in its nondelegation decisions. Taken together, these characteristics—or what might be called the six degrees of delegation—constitute the full dimensionality of the authority that nondelegation doctrine holds cannot be transferred:

• Nature of action. The first such characteristic is obvious: the authority needs to be one of creating binding rules, that is, a lawmaking power.
• Basis for decision-making. The second characteristic is the permissible basis for exercising that power, a basis that can be constrained by the oft-referenced “intelligible principle.”
• Extent of required process. The third characteristic refers to the procedures that must be followed when establishing binding law.
• Degree of sanctions. The fourth characteristic refers to the seriousness of the sanctions standing behind that binding law and which can be imposed for violating it.
• Range of regulated targets. The fifth characteristic comprises the range of regulated individuals and organizations that can be made subject to law—for example, just the airline industry or all firms in any sector.
• Scope of regulated activities. The sixth characteristic refers to the scope of activity that is potentially subject to regulation—for example, just the release of pollution versus any aspect of a business’s operation.

These six characteristics collectively define a legislative power “herein granted.” Combining them proves pivotal when seeking to determine the permissibility of a congressional grant of lawmaking authority to an executive officer or agency.  Such a grant will offend the nondelegation doctrine when the lawmaking authorized is on par with one of the powers Congress has been granted under the Constitution. The key question is whether the full “size” and “shape” of the delegated authority is akin to an enumerated power.

This question makes the relevant legal analysis similar, in its way, to how airlines define permissible carry-on luggage. To ensure that passengers’ suitcases will fit into overhead compartments, airlines do not merely specify a single dimension—such as width. Instead, they specify the permissible width, height, and depth of a carry-on bag. Some airlines even place near airport check-in counters small pre-sized frames of the permissible dimensions. Only suitcases that fit inside the frame can be taken on board.

The nondelegation doctrine operates in much the same way. What matters is not merely one dimension—say, the degree of constraint on the exercise of power as defined by an intelligible principle. What matters is the totality across all dimensions,  including the extent or scope of that power.

The Supreme Court last used the nondelegation doctrine to strike down legislation in the 1935 case of A.L.A. Schechter Poultry Corp. v. United States because a New Deal statute gave the President unfettered power to regulate every sector of the economy with respect to any type of business activity. The shape and size of the authority Congress granted to the President in that legislation approximated that of the interstate commerce power which Article I grants only to Congress.

Admittedly, the Court has not invoked the nondelegation doctrine to invalidate legislation since 1935. But the reason is rather obvious: no other legislation has come before the Court under the nondelegation doctrine which has approximated in its full dimensionality one of the powers “herein granted” in Article I.

A dimensional account of the nondelegation doctrine demonstrates greater fidelity to the Court’s application of the doctrine than do other accounts. Those who argue that the doctrine is dead implicitly charge that Schechter Poultry was wrongly decided. Those who argue that the Court should reinvigorate the doctrine claim that the Court has been wrong to approve so many other pieces of legislation over the last eight decades.

The dimensional account is not only more faithful to the Court’s actual application of the nondelegation doctrine, it offers a more principled basis for judicial decision-making than any alternative, including those suggested by the doctrine’s most articulate critics on the Supreme Court. Justice Neil Gorsuch, for example, appears interested in replacing the intelligible principle test with a test that ensures that Congress makes all “policy” decisions. Yet as John Manning has noted, “all legislation necessarily leaves some measure of policy-making discretion to those who implement it.”

Figuring out in the abstract how much policy discretion is “too much” will prove as puzzling and incoherent as figuring out whether a principle guiding the basis of administrative action is sufficiently “intelligible.” The problem with both approaches stems from their reliance on unidimensionality, that is, relying on a single factor and asking whether it is “too much” or “too little.” By contrast, a multi-dimensional approach makes better sense because it focuses judicial inquiry on a full comparison with an Article I power. The multi-dimensional account gives judges a benchmark in the Constitution against which to measure the delegated authority: Is a contested lawmaking authorization comparable in its full shape and size to one of the legislative powers enumerated in Article I?

Article I does not unqualifiedly prohibit Congress from authorizing executive lawmaking. Indeed, if anything, it specifically allows such authorization under the necessary and proper clause. Still, by enumerating specific legislative powers and vesting them in Congress, the Constitution does indeed preclude the full transfer of a legislative power “herein granted”—it is simply that such a power  can only be understood by taking into account all of its dimensions.

Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political Science at the University of Pennsylvania, where he directs the Penn Program on Regulation and serves as the faculty advisor to The Regulatory Review.