At Law & Liberty, John McGinnis: Nondelegation Without Chaos. From the introduction:
If one theme unites the Roberts Court’s work in administrative law, it is a counter-reformation that recenters the Constitution’s basic architecture for the administrative state. Congress is to legislate; the president and his subordinates are to execute within a hierarchical, accountable executive; and courts are to exercise independent judgment in interpreting the laws. That settlement, grounded in the Constitution’s Vesting Clauses, animates a series of linked doctrines returning power to the institutions to which the Court believes the Constitution originally entrusted it.
The Roberts Court’s vision for the separation of powers points toward a stricter nondelegation doctrine. Delegation is Congress’s practice of permitting agencies to regulate conduct under broad authorizations that allow the executive substantial policy choice. These delegations have included authority to regulate in the “public interest” without further defining that term or directions to an agency to pursue an objective stated at a high level of generality, such as promoting public health, without indicating how much harm is consistent with protecting the public health. Such broad delegation threatens to make the executive the lawmaker by giving over to that branch the essential policy choices the Constitution entrusts to Congress.
The Supreme Court’s only current limitation on delegation is that Congress must have articulated an “intelligible principle.” And it has applied this test so leniently that it has never struck down a delegation since the New Deal. The “intelligible principle” test now plays much the same role for congressional delegations that rational‑basis review plays for state legislation—a toothless screen that projects oversight while failing to enforce constitutional limits.
The Framers recognized that the legislative power was the most important of all the powers delegated in the Constitution, because it was the only federal authority that could directly affect their domestic liberty. Legislative power—prescribing rules that bind private conduct—belongs only to Congress, and for good reasons. That assignment channels lawmaking through a deliberative, laborious, publicly accountable process. Justice Neil Gorsuch’s dissent in Gundy v. United States articulates this structure crisply: Congress must make the policy decisions; the executive may “fill up the details” or find facts that trigger rules Congress has created. That is the Constitution’s path to stable rules, fair notice, and political accountability.
While I cannot fully defend the originalist case for limiting the delegation doctrine here, my frequent co-author, Michael Rappaport, does so in “A Two-Tiered and Categorical Approach to the Nondelegation Doctrine,” proposing a two-tier framework. For domestic regulation of private rights—most of the stuff of administrative law—he proposes a categorical bar on delegating policymaking discretion. In contrast, he proposes a more lenient standard where history and structure counsel executive flexibility, as in appropriations, foreign and military affairs, and territorial governance. He grounds the strict rule for domestic regulatory affairs in text, history, and structure—especially the private/public rights distinction and James Madison’s insistence that laws provide details, definitions, and rules. The executive in the strict tier is limited to genuine interpretation, fact-finding, and application. On this view, the current doctrine abdicates Congress’s duty precisely where liberty most requires legislative judgment. …
The tariff case, if the administration wins it, may be the “two tiered” theory’s moment.
UPDATE: Josh Blackman reports on the oral argument in the tariff case: Counting to Five for the Government In The Tariffs Case. Contrary to much of the commentary, he says: “This case is close, but I think that ultimately the tariffs are upheld.”
Perhaps, but I think (a) the government can’t count to five without either Justice Thomas or Justice Gorsuch; and (b) Thomas and Gorsuch not not going to say that the IEEPA (purportedly authorizing the tariffs) satisfies the nondelegation doctrine. Therefore, the government wins only if the nondelegation doctrine doesn’t apply. So the “two tiered” theory is (or may be) the key.
Posted at 6:40 AM