Unveiling the Illusion of the Federal Private Nondelegation Doctrine, Part 2

I began serial-blogging my recent Notre Dame Law Review article, The Myth of the Federal Private Nondelegation Doctrine, yesterday. I intend to continue doing so here over the next few days. This is especially relevant given the pending horseracing case in the Fifth Circuit, for which I filed an amicus brief on behalf of the Reason Foundation and others. Part I, which I present today, provides a detailed classification of various nondelegation-related doctrines. Keep in mind that this is an unsourced version without footnotes, so please refer to the original for the full version. I. The spectrum of nondelegation doctrines Nondelegation is a challenging concept to grasp because there isn’t just one nondelegation doctrine. Everyone is familiar with the traditional doctrine, typically referred to as the Nondelegation Doctrine, which originates from Article I’s Vesting Clause. However, there are other doctrines that also pertain to delegations, and the term “delegation” is sometimes used when discussing these doctrines. While this isn’t incorrect, it’s important not to conflate these similar-sounding doctrines. To better illustrate the different doctrines, consider the hypothetical “Goodness and Niceness Commission” created by Gary Lawson. In this scenario, Congress passes a Goodness and Niceness Act, with section 1 prohibiting transactions not promoting goodness and niceness, and section 2 enabling the Commission to establish regulations defining the statute’s content. The problem here arises from the side of the giver, as Congress has relinquished too much power. Now, imagine a scenario where Congress establishes specialized Article III courts and grants them jurisdiction over cases involving plaintiffs lacking standing, or cases falling outside the Article III jurisdictional categories. In this instance, the problem lies with the recipient, as the courts are constitutionally barred from hearing such cases. Finally, if Congress were to provide an agency with detailed guidance on conducting adjudications and, under that guidance, deprive parties of liberty or property interests without notice or procedural rights, the problem would be related to the application of the delegated powers. This taxonomy divides nondelegation rules into three categories: giver-based, recipient-based, and application-based. This section examines each type in detail. A. Giver-Based 1. The Article I Nondelegation Doctrine The primary giver-based nondelegation doctrine is the classic Nondelegation Doctrine derived from Article I’s Vesting Clause, which holds that Congress cannot transfer legislative power. While this doctrine’s caselaw has elaborated on the principle in numerous ways, it’s essential to note that the doctrine only applies to congressional delegations, not state delegations. Additionally, the doctrine defines legislative power not formally, but functionally as the power to make law in an unconstrained manner. According to this doctrine, delegations do not cross the line into legislative delegations unless Congress fails to provide an “intelligible principle” to guide the delegate’s discretion. Moreover, the presence of congressionally mandated procedures and judicial review can prevent a violation of this doctrine. While most Nondelegation Doctrine cases involve executive agencies, the doctrine applies to any delegate, and in cases where the delegate already possesses inherent authority over the subject matter, the intelligible principle doctrine may be weakened or omitted. Notably, this doctrine is not explicitly used often, although it operates behind the scenes in various administrative doctrines. 2. Some Other Giver-Based Doctrines Other giver-based doctrines, less well-known, have also surfaced in cases or scholarship. The void-for-vagueness doctrine, rooted in due process, aims to avoid delegating standardless authority. Additionally, the Constitution lets Congress “define and punish Offences against the Law of Nations.” There are also questions about whether the Offenses Clause makes this an exclusive congressional power. The Constitution provides for the creation of lower federal courts, raising questions about whether Congress has the power to delegate to courts to create additional courts. Moreover, certain powers, such as appointing presidential Electors and holding congressional Elections, may also be nondelegable. B. Recipient-Based: The Appointments Clause and More The second class of nondelegation doctrines is recipient-based, preventing a recipient from exercising the delegated power. Many separation-of-powers doctrines can be considered recipient-based nondelegation doctrines, with the Appointments Clause being a prime example. This clause prohibits Congress from delegating significant federal authority to someone unless they are appointed according to the rules governing officers of the United States. The same principle applies to certain types of adjudicative power, where Congress cannot delegate these powers to a recipient who is not properly appointed and removable.