Bring on the Chicken and Hot Oil: Reviving the Nondelegation Doctrine for Congressional Delegations to the President

St. John's Law Review Volume 95, 2021, Number 3 Article 4 Bring on the Chicken and Hot Oil: Reviving the Nondelegation Doctrine for Congressional Delegations to the President Loren Jacobson Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Administrative Law Commons, Constitutional Law Commons, and the President/Executive Department Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . BRING ON THE CHICKEN AND HOT OIL: REVIVING THE NONDELEGATION DOCTRINE FOR CONGRESSIONAL DELEGATIONS TO THE PRESIDENT LOREN JACOBSON† INTRODUCTION The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties.1 Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,”2 the Supreme Court of the United States has essentially created a fiction:3 when Congress provides as part of the delegation “intelligible principles” that in some way cabin the discretion of the decisionmaker to whom it has delegated,4 the decisionmaker is no longer “legislating,” but merely “executing” the law, as the executive branch may do.5 † Assistant Professor of Law, UNT Dallas College of Law. I am grateful to Professor William Araiza of Brooklyn Law School and Professors Brian L. Owsley, Antony Kolenc, and Christina Masso of UNT Dallas College of Law for their very helpful comments on earlier drafts. 1 See Mistretta v. United States, 488 U.S. 361, 371–72 (1989); see James M. Rice, The Private Nondelegation Doctrine: Preventing the Delegation of Regulatory Authority to Private Parties and International Organizations, 105 CALIF. L. REV. 539, 545–48 (2017). 2 Mistretta, 488 U.S. at 372. 3 Posner and Vermeule call it a “metaphor.” Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1726–28 (2002). 4 Gundy v. United States, 139 S. Ct. 2116, 2129, 2140 (2019) (“[D]elegation is constitutional so long as Congress has set out an ‘intelligible principle’ to guide the delegee’s exercise of authority.”). 5 See U.S. CONST. art. II, § 3 (the President has the duty to “take Care that the Laws be faithfully executed”); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 410 (1928) (holding that where a statute contains intelligible principles, the President is “not in any real sense invest[ed] . . . with the power of legislation, because 683 684 ST. JOHN’S LAW REVIEW [Vol. 95:683 In the entire history of constitutional law, the Supreme Court has only twice used the “intelligible principle” standard to invalidate congressional delegations to the executive, and both of those decisions came down in 1935.6 As Cass Sunstein so aptly put it twenty years ago, the conventional nondelegation doctrine has had “one good year, and 211 bad ones (and counting).”7 Now, of course, it has had 231 bad years, making it practically moribund.8 Currently, however, advocates of a more robust nondelegation doctrine have some hope that its rebirth may be imminent.9 In June 2019, in Gundy v. United States—a case involving a congressional delegation to the U.S. Attorney General—four Supreme Court justices indicated their willingness to revisit the nondelegation doctrine, and Justice Gorsuch penned a dissent that set out a more robust version of the “intelligible principle” standard than has prevailed for nearly a century.10 In a November 2019 statement associated with a denial of certiorari, Justice Kavanaugh, who did not take part in the consideration or decision of the Gundy case, indicated that Justice Gorsuch’s dissent in Gundy “may warrant further consideration” of the nondelegation doctrine “in future cases.”11 Yet, in a later nondelegation case in which one of the lower court judges practically invited the Supreme Court to revisit nondelegation, the Court denied certiorari.12 The case, American nothing involving the expediency or just operation of such legislation was left to the determination of the President”). 6 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935); Panama Refin. Co. v. Ryan, 293 U.S. 388, 429–30 (1935). 7 Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). 8 In a recent article, Professors Julian Davis Mortenson and Nicholas Bagley argue that we should “[f]orget the debate whether nondelegation is dead. It was never really alive to begin with.” Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 COLUM. L. REV. 277, 285 (2021). Eric Posner and Adrian Vermeule have said, “Nondelegation is nothing more than a controversial theory that floated around the margins of nineteenth-century constitutionalism—a theory that wasn’t clearly adopted by the Supreme Court until 1892, and even then only in dictum.” Posner & Vermeule, supra note 3, at 1722. 9 Many of these advocates have been weighing in with their own versions of a more robust nondelegation doctrine. See, e.g., Aaron Gordon, Nondelegation, 12 N.Y.U. J.L. & LIBERTY 718, 781–88 (2019). 10 See Gundy v. United States, 139 S. Ct. 2116, 2131, 2141 (2019) (Gorsuch, J., dissenting); id. at 2131 (Alito, J., concurring) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort”). 11 Paul v. United States, 140 S. Ct. 342, 342 (2019) (mem.). 12 Am. Inst. for Int’l Steel, Inc. v. United States, 141 S. Ct. 133, 133 (2020) (mem.). 2021] BRING ON THE CHICKEN AND HOT OIL 685 Institute for International Steel, Inc. v. United States, did not involve congressional delegation to an agency, but congressional delegation to the President.13 Specifically, President Trump, relying upon the authority Congress delegated to the President in the Trade Expansion Act of 1962,14 imposed tariffs on steel and aluminum.15 The American Institute for International Steel challenged President Trump’s imposition of tariffs, arguing that the delegation in Section 232 of the Trade Expansion Act did not contain sufficiently narrow intelligible principles.16 The U.S. Court of Appeals for the Federal Circuit found that the authority given to the President in the Trade Expansion Act was not an unconstitutional delegation of congressional authority.17 The Federal Circuit’s holding was based entirely on an earlier Supreme Court case, Federal Energy (...truncated)