The Administrative State Before the Supreme Court

Description

In The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine, leading scholars consider a revival of the Constitution’s nondelegation doctrine—the separation-of-powers principle that bars Congress from transferring its legislative powers to the administrative agencies. Although the nondelegation doctrine has lain dormant since 1935, some Supreme Court justices have recently called for its return. As the Supreme Court takes up the doctrine in current cases, this volume makes a timely contribution to our understanding of the separation of powers and the Constitution.

Sujets

• American Government
• Political Science
• Federal government of the United States
• Supreme Court of the United States
• United States Constitution
• National
• Cour suprême des États-Unis

Informations

• Publié par: AEI Press
• Date de parution: 01 avril 2022
• Nombre de lectures: 0
• EAN13: 9780844750446
• Langue: English

Extrait

THE ADMINISTRATIVE STATE BEFORE THE SUPREME COURT
Perspectives on the Nondelegation Doctrine
Edited by Peter J. Wallison and John Yoo
T HE AEI P RESS

Publisher for the American Enterprise Institute Washington, DC
Distributed by arrangement with the Rowman & Littlefield Publishing Group, 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706. To order, call toll-free 1-800-462-6420 or 1-717-794-3800. For all other inquiries, please contact AEI Press, 1789 Massachusetts Avenue, NW, Washington, DC 20036, or call 1-202-862-5800.
ISNB-13: 978-0-8447-5042-2 Hardback
ISNB-13: 978-0-8447-5043-9 Paperback
ISNB-13: 978-0-8447-5044-6 eBook
© 2022 by the American Enterprise Institute for Public Policy Research. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers, or trustees of AEI.
American Enterprise Institute 1789 Massachusetts Avenue, NW Washington, DC 20036 www.aei.org
Content Cover Title Copyright Content Introduction Peter J. Wallison Reviving the Nondelegation Principle in the US Constitution Douglas H. Ginsburg The Nondelegation Test Hiding in Plain Sight: The Void-for-Vagueness Standard Gets the Job Done Todd Gaziano and Ethan Blevins Reinvigorating Nondelegation with Core Legislative Power Mark Chenoweth and Richard Samp A Private-Law Framework for Subdelegation Gary Lawson A “Step Zero” for Delegations Jonathan H. Adler A Two-Tiered and Categorical Approach to the Nondelegation Doctrine Michael B. Rappaport Executive Administration of the Government’s Resources and the Delegation Problem John Harrison The Sky Will Not Fall: Managing the Transition to a Revitalized Nondelegation Doctrine Saikrishna Bangalore Prakash Can the Supreme Court Learn from the State Nondelegation Doctrines? Joseph Postell A Judicially Manageable Test to Restore Accountability David Schoenbrod Conclusion John Yoo Acknowledgments About the Authors
i ii iii iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393
Guide Cover Title Copyright Content Start of Content Conclusion John Yoo Acknowledgments About the Authors
Introduction
PETER J. WALLISON
T he separation of powers is a distinguishing feature of the US Constitution. Designed by the framers in 1787, it vests all legislative power in Congress, all executive and law enforcement power in the president and the executive branch, and all judicial power in the Supreme Court and inferior courts.
The framers chose this structure because they had seen, in other countries, that the people’s liberties are in jeopardy if the same person or group can both make the laws and enforce them. In Federalist 47, for example, James Madison wrote, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.” 1
The framers placed particular faith in the judiciary to intercede if one of the branches overstepped its bounds. In Federalist 78, Alexander Hamilton referred to the judiciary as the “Guardian of the Constitution” and noted that judges were given lifetime tenure in office so they would have the “fortitude” to take on the elected branches if one or both sought to exceed their constitutional authority. 2
This idea, that the judiciary bears some responsibility for protecting and preserving the Constitution and its separation of powers, is what gave rise to the nondelegation doctrine (NDD), the focus of this book—a judge-made rule that is intended to prevent Congress from delegating or transferring its legislative responsibilities to the president or the agencies of the executive branch.
The Supreme Court last invoked the NDD in 1935, and many legal scholars have considered it outdated or defunct. Yet, in the recent decision in Gundy v. United States , all eight members of the Court participating in the case, including the four liberal members, made clear that the NDD is still a viable principle of constitutional jurisprudence. Indeed, a majority of the Court have since signaled that they are willing at least to consider a case in which the NDD would be fully revitalized and updated. If the Court formally moves in this direction, it could strengthen the separation of powers and fundamentally change the way the three branches of the US government function.
The chapters in this book—authored by legal scholars and students of the Constitution—offer ideas for how the Court might restore the NDD’s role in the constitutional system or apply it appropriately in the future. A brief summary of each chapter is included at the end of the introduction.
The New Deal and the Change in the Role of Congress
The framers’ constitutional design, which vested all legislative power in Congress, worked as intended for about 150 years, through the Civil War and World War I. During this period, control of Congress and the presidency passed from one party to the other, but Congress remained the most powerful of the three branches, retaining—and fully exercising—the sole power to make the laws.
Much changed, however, with the Great Depression and President Franklin D. Roosevelt’s New Deal. As the economy failed to respond to his initial policies, Roosevelt asked for additional powers from Congress, most of which were to be exercised by executive branch agencies—not only the familiar cabinet agencies such as the Departments of Labor, Treasury, and Commerce but also many new independent agencies such as the National Labor Relations Board and the Federal Communications Commission (FCC). These agencies and the traditional cabinet departments were often given a new kind of wide-ranging authority—to act in the “public interest” or make sure that prices were “fair and reasonable.”
Open-ended powers like these, in the hands of unelected officials, raised questions about whether Congress was actually making the laws or simply delegating its legislative authority to unelected officials in the executive branch. If so, it would amount to a major change in the structure of the constitutional system by placing in the same hands the power to both make and enforce the laws.
Although the framers were concerned that one of the elected branches would reach for excessive power, they did not foresee that the most troubling problem—arising first in the New Deal—would be the willingness of Congress to hand over to the president and the executive branch a great deal of its discretionary authority, much of which looked to be the legislative authority that the Constitution had vested solely in Congress. Congress would do this for many reasons—often when the same political party controlled both the presidency and Congress and to avoid difficult and controversial policy decisions that could jeopardize their chances for reelection.
Instead of passing laws that embodied these controversial decisions, members of Congress found it easier simply to create goals for the agencies. If the public demanded cleaner air, for example, it was far easier for Congress to authorize the Environmental Protection Agency (EPA) to meet that goal rather than to set rules that required the plant closings or expensive technical retrofits that might be necessary. By merely stating a goal for the agency, Congress could pass these difficult decisions to the EPA. If constituents complained about the loss of jobs because of a power plant’s closing, members of Congress could easily deflect responsibility by blaming the EPA, over which they had no control.
In other words, Congress has been willing to sell its own birthright—its unique constitutional power to make the laws—to avoid the controversies associated with its responsibilities. As John Hart Ely wrote in 1981, “By refusing to legislate our legislators are escaping the sort of accountability that is crucial to the intelligible functioning of a democratic republic.” 3
One of the principal reasons for revitalizing the NDD is that it would force Congress to do its job—to make the difficult policy decisions for the country that a legislature is supposed to make, instead of passing these decisions to the administrative agencies of the executive branch.
Chevron and Its Relation to the NDD
No discussion of the prospects for the NDD and its potential role in limiting