« Jack Beermann on Kurt Eggert on Nondelegation and Originalism
Michael Ramsey
| Main | Julia Mahoney: Cedar Point Nursery and the End of the New Deal Settlement
Michael Ramsey »


Justice Kagan's Dissent in West Virginia v. EPA
Mike Rappaport

I have some serious reservations about both the majority and the concurrence in West Virginia v. EPA.  The major questions doctrine appears to be neither statutory nor constitutional originalism.  But more on that in the future.  Here I want to note two problems with Justice Kagan’s dissent. 

The first problem is Justice Kagan’s discussion of the nondelegation doctrine.  She writes:

The kind of agency delegations at issue here go all the way back to this Nation’s founding. “[T]he founding era,” scholars have shown, “wasn’t concerned about delegation.” . . . The records of the Constitutional Convention, the ratification debates, the Federalist—none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice.

Kagan largely relies on Mortenson & Bagley’s Delegation at the Founding.  And their article does present some significant evidence of delegation.  But Kagan’s overstates the case.  Ilan Wurman’s article, Nondelegation at the Founding, also shows that there were substantial concerns about delegation at the founding.  It seems odd that Kagen simply ignores Wurman’s evidence. 

Put differently, it is one thing to claim that the evidence in favor of delegation outweighs the evidence against it.  It is another to claim there is no evidence against delegation.  Depending on what version of the nondegation doctrine one accepts – a two tier approach or a single tier approach, a categorical approach or an "important subjects" approach – the evidence may point more towards one or other position.  But it is clear there is evidence on both sides.

The second problem involves Kagan’s discussion of the reasons why Congress delegates.  She writes that “Members of Congress often don’t know enough— and know they don’t know enough—to regulate sensibly on an issue.”  And “Second and relatedly, Members of Congress often can’t know enough—and again, know they can’t—to keep regulatory schemes working across time.”  These sound like legitimate reasons for Congress to delegate.  Perhaps they justify delegation from a policy perspective, although I do not think so because the REINS Act would allow Congress to rely on agency expertise. 

But Kagan makes it sound as if these are the primary reasons why Congress delegates.  But there is another reason why it does so: delegation allows the members of Congress to avoid responsibility for regulations.  If the regulation is popular, the member takes credit for it.  If the regulation is unpopular, the member says he or she had no idea the agency would behave so irresponsibly.  While astute political observers should be able to see through this, most voters do not. 

If Kagan were to have acknowledged this was part of the reason Congress likes delegation, it would have made her argument much weaker.  But is she really prepared to deny this obvious aspect of delegation?