David Froomkin: Nondelegation Step Zero
Michael Ramsey
David Froomkin (JD/PhD Candidate, Yale University) has posted Nondelegation Step Zero (38 pages) on SSRN. Here is the abstract:
The nondelegation doctrine, as a matter of both precedent and logic, properly distinguishes between delegations to administrative agencies and delegations to the President, imposing more vigorous scrutiny on the latter. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of the legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. At the same time, the nondelegation doctrine has a valuable role to play in constraining the delegation of broad powers to the President directly, a constraint that encourages delegation of regulatory authority to administrative agencies. The diffuse structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite.
It's an interesting idea, though I'm not sure there's historical support from anywhere near the founding era. (Also there are very broad delegations to the President directly in the modern era, especially in the foreign affairs field.) And, I'm doubtful that the nondelegation doctrine's purpose is "not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies." I would say (and I think more important people than I, such as Justice Gorsuch would say) that part of the purpose of the nondelegation doctrine is to assure that laws are made by the elected representatives of the people, not by unelected bureaucrats. Still, it's worth thinking about whether it makes a difference if the delegation is to the President directly rather than to an agency.