Mutually Intelligible Principles?

Pace Law Review Volume 43 Issue 1 Article 1 December 2022 Mutually Intelligible Principles? Andrew J. Ziaja Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Administrative Law Commons, and the Constitutional Law Commons Recommended Citation Andrew J. Ziaja, Mutually Intelligible Principles?, 43 Pace L. Rev. 1 (2022) Available at: https://digitalcommons.pace.edu/plr/vol43/iss1/1 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . PACE LAW REVIEW Volume 43 Fall 2022 Number 1 Mutually Intelligible Principles? Andrew J. Ziaja* I. II. III. IV. V. INTRODUCTION .................................................................................................. 2 WAYMAN IN SCHOLARLY DEBATE FROM NONDELEGATION TO MAJOR QUESTIONS ............................................................................................ 5 A. Debate Between Whitman and Gundy ......................................... 7 B. Debate Since Gundy .......................................................................... 14 FOLLOWING WAYMAN FROM GUNDY THROUGH JARKESY AND WEST VIRGINIA............................................................................................... 24 A. Gundy v. United States...................................................................... 24 B. Jarkesy v. SEC ....................................................................................... 27 C. West Virginia v. EPA ......................................................................... 33 A MORE FAITHFUL READING OF WAYMAN................................................ 43 CONCLUSION .................................................................................................... 50 Abstract Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and *M.P.A. magna cum laude, Sciences Po (Paris Institute of Political Studies); J.D., Uni- versity of California, College of the Law, San Francisco (formerly UC Hastings); Graduate Fellowship, History, University of California, Berkeley; B.A. with honors and distinction, History, University of Michigan, Ann Arbor. Andrew Ziaja is an attorney serving with the National Labor Relations Board in Washington, D.C., and a former partner at Leonard Carder LLP in San Francisco and Oakland, California. The views expressed in this article are his alone and not those of the National Labor Relations Board, the United States Government, or any other entity. All errors are also his alone. He would like to especially thank Sonya Ziaja and Brigham Daniels for their thoughtful readings. 1 1 2 PACE LAW REVIEW [Vol. 43.1 jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation concept while overwriting its relationship with elements of the political question doctrine. In West Virginia v. EPA, 142 S. Ct. 2587 (2022), Justice Neil Gorsuch and his adherents have, in effect, subverted key aspects of Chief Justice John Marshall’s reasoning in Wayman while outwardly relying upon it to claim legitimacy. I conclude that faithfully reading Wayman urges a political question rationale for lower courts to decline to reach the merits of major questions and nondelegation challenges in the wake of West Virginia. I. INTRODUCTION West Virginia v. EPA1 may signal that the major questions doctrine has absorbed or superseded the nondelegation doctrine. There can be no mistaking the two doctrines’ close relationship in the current Supreme Court’s view. Though this much is clear, this leaves lower courts with little direction as to what to do with the entangled state of the two doctrines following West Virginia. Closely examining the doctrinal origins of the current Court’s vision provides an answer that would surely surprise modern proponents of the major questions and nondelegation doctrines: lower courts should hesitate to reach the merits of major questions and nondelegation challenges under a political question rationale. An early decision by Chief Justice John Marshall, Wayman v. Southard,2 has gained focus in recent nondelegation analyses—not only in West Virginia, but also in Gundy v. United States,3 Jarkesy v. SEC,4 and the academic treatments surrounding them. The recent 1. See generally West Virginia v. EPA, 142 S. Ct. 2587 (2022) (adopting the major questions doctrine for analyzing congressional grants of authority to administrative agencies). 2. See generally Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) (holding federal courts to not be subject to state legislation and recognizing the power of Congress to regulate court procedure). 3. See generally Gundy v. United States, 139 S. Ct. 2116 (2019) (upholding congressional delegation of authority to implement provisions of criminal statute based on feasibility considerations, while relying on statutory interpretation to determine whether Congress has supplied an intelligible principle to guide the delegee). 4. See generally Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022) (holding inter alia that discretion to bring SEC enforcement actions before either administrative https://digitalcommons.pace.edu/plr/vol43/iss1/1 2 2022] MUTUALLY INTELLIGIBLE PRINCIPLES? 3 prominence of Wayman is noteworthy in itself, as it received hardly any attention during the last major chapter of the nondelegation debate, around the time of Whitman v. American Trucking Associations.5 It still is only selectively quoted. More holistically, reading Wayman points to a political question principle that has escaped attention from scholars and jurists alike. Nondelegation proponents draw on a remark by Chief Justice Marshall in Wayman,6 concerning whether Congress could delegate to the federal courts to regulate their own procedures.7 Justice Neil Gorsuch’s dissent in Gundy exemplifies this, observing with a conspicuous ellipsis that “[a]s Chief Justice Marshall explained, Congress may not ‘delegate . . . powers which are strictly and exclusively legislative.’”8 Justice Gorsuch and the Gundy plurality agreed on this point: Justice Elena Kagan’s opinion also relied on Wayman.9 While the doctrine did not invalidate the delegation in Wayman, it is true that Chief Justice Marshall entertained whether “Congress can delegate to the Courts, or to any othe (...truncated)