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05/18/2022

Richard Reinsch on Reviving the Nondelegation Doctrine
Michael Ramsey

At Law & Liberty, Richard Reinsch: Can We Revive the Old Constitution? (reviewing  The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine (Peter Walliston & John Yoo eds., AEI Press 2022)). From the introduction:

Two common proclamations currently dominate conservative thinking: (1) We are governed by runaway bureaucrats with no accountability to the people, and (2) We are governed by a Congress that refuses to legislate in any regular capacity, even refusing to deliberate in committee and vote on a federal budget on a department-by-department basis. ...

But congressional representatives or senators seem incapable of taking concrete action to revive legislative deliberation, restore the Congressional committee system, discipline the executive bureaucracy, and concentrate on truly national policy concerns, among other items.

We know the scope of the problem, that a deliberating legislative power is no longer substantively exercised by the branch of government vested by the Constitution with this capacity. Instead, much of this lawmaking power takes place in the regulatory or administrative state. Rulemaking also takes place through adjudication, where disputes with private litigants are presided over by administrative judges ensconced in the actual agency whose rules are in dispute.

Legislation, enforcement, and adjudication are exercised by the same set of hands. Publius called this tyranny, and one of the objectives of the 1787 Constitution was to eliminate it.

A new volume from the American Enterprise Institute titled The Administrative State Before the Supreme Court, featuring contributions from a dozen, mostly legal academics, investigates the prospects of reviving the nondelegation doctrine (NDD), which would prevent or at least place limits on Congress transferring its legislative powers to the administrative state. The hopeful consequence is that it would restore Congress to its representative, deliberative power.

And from later on:

And that brings us to the present moment and Justice Gorsuch’s question for reigniting the NDD: What is the test? Justices Roberts, Gorsuch, and Thomas filed a dissenting opinion in Gundy. Justice Alito filed a concurring opinion, but noted, “If a majority of justices were willing to reconsider the approach we have taken for the last 84 years [that is, since the 1935 and the decisions in Panama Refining and A.L.A. Schechter Poultry], I would support that effort.” Gorsuch’s dissent, though, looms largest and is the inspiration for AEI’s scholarly effort.

...

Most of the contributions in the volume are attempts to answer Gorsuch’s question: What is the test? Some offer attempts to provide great robustness to the standard of an intelligible principle that could guide executive agencies in their work and that courts could use to measure if a tailored and direct delegation occurred. ...

One of the essays is by Mike Rappaport: A Two Tiered and Categorical Approach to the Nondelegation Doctrine.