Demise of non-delegation doctrine

• The growth of administrative state killed the non-delegation doctrine. Non-delegation has all but disappeared as constraint on delegation of authority to administrative agencies.

• Why did the non delegation doctrine fail?

• Judicially under enforced constitutional norms.

• Has USC changed? (e.g. Bruce Akerman)

• Are there any situations in which it would be appropriate to invoke the non-delegation doctrine? Suppose a statute paraphrases Truman’s pre-Youngstown press conference and declares “the president shall have the power to do whatever he thinks is best for the country.”

• Statutes authorizing regulation of “unreasonable risks” or administrative action “in the public interest” appear immune from attack.

• On rare occasions, non-delegation doctrine is invoked as aid to statutory construction: fear of broad delegation is reason to construe administrative authority narrowly.

• Schecter itself has not been overruled, and massive delegation of authority as in that case might be struck down today. But non-delegation doctrine has not been invoked in modern cases, notwithstanding breadth of delegations to administrative agencies.

Amalgamated Meat Cutters V. Connally

• 1971. Court upheld statute authorizing president to impose wage/price controls on ground that implicit standards of “borad fairness and avoidance of gross inequity” were sufficient. Key factors: temporary character of delegation, president could not discriminate unreasonably among industries, implicit requirement that president come up with standards to limit his own discretion.

Touby V. United States

• 1991. Controlled Substances Act authorized Attorney General to make criminal manufacture, possession, or distribution of any dug that met statutory criteria relating to “history and current pattern of abuse” and risk to public health. SC rejected non delegation doctrine challenge to this Act.

Loving V. United States

• Kennedy 1996. Statute stipulated that punishment which a court-martial may direct for an offense may not exceed such limits as President may prescribe for that offense, and that court martial may, under such limitations as President prescribes, adjudge any punishment not forbidden by statute, including death penalty. SCt rejected argument that statute failed to establish “intelligible principle” guiding President’s discretion and thus violated non delegation doctrine. SCt argued that guidance telling President how to formulate regulations was not needed because delegation was set within certain boundaries and because President is Commander in Chief.

Arguments in favor of reviving non-delegation doctrine d. Schoenbrod

• Delegation allows legislators to claim credit for benefits which a regulatory statute promises yet escape blame for burdens it will impose because they do not issue laws needed to achieve those benefits.

• USC prohibits delegation of legislative power. Since New Deal, SC has argued that delegation decision should be left to Congress and president because Congress’s concern for its power will prevent it from delegating too much. This reasoning is simplistic; in reality, Congress enhances its power by delegating.