To Delegate or Redelegate: Is That the Question?

Redelegators ordinarily begin with four points. First, administrative rule making, monitoring, and enforcement are all unavoidable corollaries of the executive function derived from legislation itself.

Thomas W. Merrill, Rethinking Article I Section 1: From Nondelegation to Exclusive Delegation, 104 Col. L. Rev. 2097, 2101 (2004).

Moreover, congressional and judicial action is slow, cumbersome, costly, and thus not very responsive to fast moving or unexpected events or developments; Congress and especially courts may also not be very good at fact gathering, being guided by different norms and possibly lacking in useful long term personal relationships.

Kathryn A. Watts, Rulemaking as Legislating, 103 Geo. L. J. 1003, 1005 (2015).

Hence, the common observations that implementation “necessarily involves a considerable amount of policymaking,”

Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 Mich. L. Rev. 2073, 2094 (2005).

Second, because of this practical necessity, the nonredelegation doctrine is said to have no real history. Keith Whittington and Jason Juliano conclude that “there was never a time in which the courts used the nonredelegation doctrine to limit legislative delegations of power.”

Keith E. Whittington & Jason Juliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 381 (2017).

Redelegators prefer, instead, to speak of sleep. Hobbes in On the Citizen writes of a sleeping sovereign, whose ministers do not assume his sovereignty as their own, but merely implement the orders he gave before he went to sleep.

Thomas Hobbes, On the Citizen 99–100 (Richard Tuck & Michael Silverthorne eds. 1990) (1642).

The most careful historical inquiry, Creating the Administrative Constitution (2012) by Jerry Mashaw, confirms this narrative, confounding the conventional view that once upon a time the federal government was run by a Congress that wrote “virtually self-executing laws.”

Theodore J. Lowi, The End of Liberalism 94 (1969). See also, e.g., Morton J. Horowitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy 213–46 (1991); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1675 (1973).

This embrace of broad redelegation followed not from abstract principle, but from practical necessity, experientially pursued. Even Presidents Jefferson and Jackson, ideologically appalled by the federal bureaucracy, found that they needed agencies operating with considerable discretion to distribute land from the Louisiana Purchase, implement the 1808 trade embargo, regulate navigation, and build hospitals for seamen. Agencies set down detailed rules guiding, incentivizing, and limiting their employees, and it is this “internal administrative law” and not judicial review that Mashaw finds was the chief means of accountability. In other words, agency driven administrative law, often with little congressional or judicial input, governed administration, reflecting the policy preferences of Presidents.

Id. 293.

Mortenson and Bagley, in almost a book sized article, also conclude that the Framers took redelegation for granted, as long as Congress did not permanently forswear its power to legislate. They believe that the Framers “thought of constitutional powers in nonexclusive and relational terms,” so that agencies would “absolutely wield legislative power to the extent they declare binding rules that Congress could have enacted as legislation.”

Mortenson & Bagley, supra note 20, at 282. The authors also dispute the originalists’ contention that the founding generation distinguished between legislation that regulates private conduct and rulemaking that regulates official conduct. They claim that the early Congresses redelegated in both areas.

Blake Emerson carries this further, arguing for the democratic potential of modern administration. In The Public’s Law (2019), he shows that Progressives, influenced by Hegel’s vision of the state as a vehicle for human freedom, believed that “the state must guarantee freedom through regulatory and welfare laws implemented by public-spirited officials.”

Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 149 (2019).

Emerson would resolve the principal-agency problem through a kind of ethical collusion: If all parties are committed to the common good, the problem would be minimized. What he perhaps does not sufficiently emphasize is that there are a multitude of paths to the common good, many of them also self interested, so that good intentions may not produce much harmony, though it may contribute significantly to the checking function of the separation of powers.

This may be the case, even though redelegation usually occurs far from the general public’s view. As another scholar observed, “the central government was most effective when its authority went unnoticed or remained hidden or was quietly obscured.”

Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth Century America 52 (2009).

Third, Redelegators believe that the political process adequately protects against abuse because, sensitive to the threat, Congress will “adequately police itself”

Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2359 (2006).

Redelegators admit that widespread redelegation may leave the impression of a joint judicial-congressional abdication of responsibility. But they point to studies of Congress that suggest that congressional oversight of delegation, even under these circumstances, can be effective. Barry Weingast and Mark Moran argue that agencies understand that Congress can punish them if they veer too far from its intent, and believe that even though punishment may be uncommon, the hazard remains potent.

Barry R. Weingast & Mark J. Moran, The Myth of Runaway Bureaucracy: The Case of the FTC, 8 Reg. 33 (1982).

Fourth, Redelegators claim that their approach serves democracy: the President is democratically elected, and can be held accountable for the performance of agencies operating under his direction.

Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ & Org. 91, 95 (1985).

Congress is also democratically elected, and can (at least, in principle) be held accountable for its oversight of agencies. Does the overwhelming odds that incumbents will be reelected suggest that members of Congress pay close attention to issues of redelegation or, instead, that they can afford to ignore them? Can we infer that the silent public approves of the redelegation or merely that it is indifferent or uninformed? In the early twentieth century, Progressives applauded redelegation because their mantra was expertise, not politics,

Landis, supra note 34, at 23.

Does this, then, disconnect redelegation from democracy? Redelegators think not, for though the public is doubtless ignorant about the literal workings of the massive agencies, they know enough about their programs to form a judgment. They like Social Security and Medicare, for example, and though they may not be fond of large bureaucracies, they understand that these programs require them. To the extent that opposition to the administrative state rests on its practical accountability problems, it must confront the more pressing fact of the approval of these programs.

More broadly, the defenders of redelegation recall the claims for judicial self restraint made by James Bradley Thayer in a renowned 1893 article, when he urged courts to declare acts of lawmakers unconstitutional only when they “have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question.”

James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893).

It is but a short step from deferring to Thayer’s lawmakers to deferring to their offspring, the agencies.

Henry P. Monaghan wrote that in administrative matters, the judge’s task is not to produce “an independent judgment rule; it is in fact quite consistent with a clear-mistake standard.” Marbury and the Administrative State, 83 Colum. L. Rev. 1, 9 (1983).

Courts, the Redelegators believe, have been solidly in their corner. Marshall Field v. Clark (1892) saw the Supreme Court uphold a statute that directed the President to determine whether tariffs on American goods could be deemed “reciprocally unequal and unjust,” and if so, to suspend the importation of the commodities “for such time as he may deem just.”

Supra note 31, at 691.

Six years after Keogh, the Court ruled in J.W. Hampton, Jr. & Co. v. United States (1928), which involved a company that imported barium oxide and complained, when the collector of customs charged six cents per pound, two cents per pound more than fixed by congressional statute. The statute also gave the President authority to “equalize differences in costs of production in the United States and the principal competing country.”

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 401 (1928).

Chief Justice Taft, a former President, acknowledged the nonredelegation rule,

Supra note 58, at 405–6.

When subsequent courts found intelligible such principles as “public interest, convenience, or necessity,”

CBS/NBC v. FCC, 319 U.S. 190, 225–26 (1943).

A half century after Hampton, redelegation was strengthened in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. (1983).

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).

That the case involved a double redelegation – from Congress to the Secretary of Transportation to the NHTSA – seems to the Court to have made no difference. This is significant for two reasons. First, such double redelegations, usually flowing from Congress to the President to an agency, have “become . . . pivotal to presidential leadership and . . . central to an understanding of presidential power.”

Moe & Howell, supra note 44, at 133.

What is established, by history if not by law, is that the President as chief executive possesses inherent executive powers involving management, covering, for example, agenda setting, staffing, information gathering, and preparing for the future. He is not a passive instrument of Congress, but, on the contrary, is supposed to supply what Hamilton in Federalist 70 called “energy.”

The Federalist No. 70, at 363 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001).

What are courts to do? The redelegators believe that courts have a significant role to play only rarely. Sometimes, they observe, even apparently sensible judicial responses turn counter productive. For example, to address fears of interests capturing agencies, courts began “providing a surrogate political process to ensure the fair representation of a wide range of affected interests.”

Stewart, supra note 22, at 1670.

In short, when courts acted to open the process, the agencies and interests tended to respond to pressure for change with their own effective work-arounds designed to further their own, often narrow interests. As a result, the formal, transparent procedure was often superseded by informal agency-interest contacts preceding the actual proposals, frustrating the purpose of the reforms but permitting small things to get done.

The nonredelegators, for their part, also emphasize four points. First, they maintain that the kind of broad redelegation that is commonplace today contravenes the clear intent of the Constitution. Article I, section 1 begins, “All legislative powers herein granted shall be vested in a Congress of the United States.”

U.S. Const., art. I.

From this perspective, even redelegation’s apparent advantage in being far more rapid and less cumbersome than ordinary legislation has a downside; for its very ease of implementation counters the constitutional goal endorsed by bicameralism that law have “broad support” before its enactment.

Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1909 (2014).

Second, the Nonredelegators often turn to an historical argument, perhaps citing John Locke: “The legislative cannot transfer the power of making laws to any other hand; for it being but a delegated power from the people, they who have it cannot pass it over to others [N]or can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.”

John Locke, Two Treatises of Government 141 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).

The most influential early writer, however, was undoubtedly the English constitutional scholar, A.V. Dicey, whose Introduction to the Study of the Constitution appeared in eight editions from 1885–1915. Dicey believed that the principles of parliamentary sovereignty and the rule of law left no room for the massive delegation to agencies that generates administrative law, displacing the common law. The United States, of course, lacks a principle of parliamentary sovereignty, and Dicey in any event seems to have seriously underestimated the breadth of administrative law in Britain,

Harry W. Arthurs, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England chs. 4–6 (1985).

This position was given its most thorough historical grounding in Philip Hamburger’s polemical Is Administrative Law Unlawful? (2014), which aimed even deeper than raising questions of constitutionality. In Hamburger’s view, the administrative autonomy of the modern American state is a direct descendant of the British kings’ claims to royal omnipotence, claims rejected by Parliament in its Glorious Revolution and by America’s Framers in their Constitution. Of course, kings always insisted that they would respect their subjects’ rights and spoke of the practical necessity of their unilateral regulations, but Hamburger calls these mere rationalizations for royal power grabs. For him (as for Dicey), the existence of the administrative state threatens nothing less than the principle of “liberty under law.”

Philip Hamburger, Is Administrative Law Unlawful? 496 (2014).

The Supreme Court has frequently announced its support for the nonredelegation principle. “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”

Marshall Field, supra note 31, at 692.

Third, nonredelegators dispute the contention that the political process keeps redelegation within acceptable bounds. Congress, they admit, has ultimate control over the structure and funding of agencies, and can use hearings and speeches to reward and embarrass. But in practice the incentives for congressional action are ordinarily too sparse to justify these actions. Occasionally, as with Hurricane Katrina, administrative performance will affect large numbers of voters in direct and obvious ways, and frequently, particular interests may motivate members to act on specific regulations, as with the recent relaxation of regulations affecting the production and use of coal.

Oliver Milman, Trump Administration Scraps Obama-Era Regulation on Coal Emissions, Guardian, Aug. 21, 2018, available at https://www.theguardian.com/us-news/2018/aug/20/trump-coal-emissions-power-plants-rules-obama.

Regulations involving microeconomic redistribution invariably mean that benefits are concentrated in a fairly small minority, while costs are diffused in a fairly large majority. As it is rational for the minority to work hard to receive substantial benefits, so is it rational for majorities absorbing tiny costs to ignore them. The larger the society and the more complex the regulations, the more the asymmetry is magnified, so that today, it is vastly greater than it was at the Founding. What results is intense, well organized, narrowly targeted minorities that nearly always triumph over unorganized, indifferent majorities. These triumphs tend to be long lasting because the minorities who benefit tend to feel much more intensely than their opponents. Administration, in the sense of addressing special purpose problems, is inherent in governing, but it is inherently biased in favor of the interests it regulates.

Redelegators may believe that it would be “implausible”

Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2148 (2004).

On the other hand, agencies may become so ossified “that informal rulemaking has become so encumbered by procedural and analytic requirements that it is no longer capable of delivering the results expected of it,”

Jerry L. Mashaw & David L. Harfst, From Command and Control to Collaboration and Deference: The Transformation of Auto Safety Regulation, 34 Yale J. Reg. 167, 170 (2017); Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59 (1995).

Members of Congress also may have their own reasons for favoring redelegation. For example, they may welcome the opportunity to pass contentious, complex, and potentially costly decisions on to other bodies, “avoid[ing] or at least disguis[ing] their responsibility for the consequences of the decisions”

Morris P. Fiorina, Group Concentration and the Delegation of Legislative Authority, in Regulatory Policy and the Social Sciences 175, 187 (Roger G. Noll ed. 1985). See also R. Douglas Arnold, The Logic of Congressional Action 101 (1990).

Also, redelegation may enhance the power of individual members, for redelegations “create administrative discretion, discretion that members of Congress can influence through a variety of formal and informal mechanisms.”

Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). Of course, the enhanced power of individual members comes at the cost of diminished power for Congress as a collective institution.

There is also the question of how Congress chooses to oversee its delegation. Will it follow the police patrol model, intervening on its own authority to ensure that its intentions are being followed? This type of oversight might be effective, but it will also prove costly in what it demands from members, in time, energy, and rejected alternatives. Or Congress might favor the fire alarm approach, descending on agencies when a serious problem has been brought to its attention. This will be much less costly to the members, but in foreswearing prevention, it may also be much less effective.

Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, 28 Am. J. Pol. Sci. 165 (1984).

When redelegations undermine legislation, they weaken Congress by attacking its credibility; no longer can interests trust Congress to ensure that the compromises and arrangements necessary for legislative enactment will be honored in implementation.

For example, Dodd-Frank, which created the Consumer Financial Protection Bureau, expressly denied it authority over financing by car dealers; the CFPB nonetheless asserted control over auto financing until the Trump administration repealed the regulations.

Yet because redelegation emphatically strengthens the executive, the checking function of the separation of powers is undermined. The general rule may be volenti non fit injuria (no wrong is done to one who consents), and so if Congress does not complain, why bother? But the question is not whether Congress is wronged but whether the Constitution is wronged by making it harder to maintain a vigorous separation of powers.

A pair of striking examples underline the lack of confidence in the ordinary political process. In The Bomb, Fred Kaplan describes how a low ranking civilian Pentagon aide in the George H.W. Bush administration convinced his superior to find out what targets were specified in the Single Integrated Operational Plan, the Defense Department’s nuclear war plan. Apparently, no military or civilian bureaucrat nor any President had thought to look into this. What was found was that the Strategic Air Command, which possessed 10,000 nuclear warheads, had simply decided to use all of them, without reference to a national nuclear strategy, and that many of the targets made no sense (for example, Moscow and vicinity was set to get 689 warheads, and an Arctic airbase that was unusable most of the year was to receive seventeen warheads). The inquiry led to modifications of the strategy, but it largely persisted through the Obama administration.

Fred Kaplan, The Bomb: Presidents, Generals, And The Secret History of Nuclear War ch. 8 (2020).

A study of Congress’ Safe Drinking Water Act as applied to Flint, Michigan is also harrowing.

Hannah, J. Wiseman, Delegation and Dysfunction, 30 Yale J. Reg. 233, 260–65 (2018).

Fourth, Nonredelegators reject the idea that redelegation is fundamentally democratic. Will presidential or congressional campaigns confer democratic mandates on the victor that extend to administrative issues? This is very doubtful.

The preeminent American political scientist has dismissed presidential mandates as a myth. Robert A. Dahl, The Myth of the Presidential Mandate, 105 Pol. Sci. Q. 355 (1990). As for Congress, initially many members may act as if an election were a mandate, but they gradually return to their normal policy positions. David A.M. Peterson, Lawrence J. Grossback, James A. Stimson & Amy Gangl, Congressional Response to Mandate Elections, 47 Am. J. Pol. Sci. 411 (2003).

If we conceive democracy in broader terms, say, at the level of the general public, it would seem obvious that the general public has little meaningful participation in the administrative work of redelegation, and likely is aware of such work only in the vague way that it is aware that food ultimately does not come from the supermarket. It is quite unrealistic, then, to expect that the general public hold administrators accountable through its capacity to elect and defeat Presidents and members of Congress. Unless we are members of a group seeking a tangible benefit, we probably are poorly informed about policies, our thoughts consisting at best of a mélange heavy on personal experiences and misinformation that we do not bother trying to rectify because it simply does not seem worth it. Does this degree of indirect, informationally problematic accountability qualify as democratic? On broad issues that strike us directly, like inflation, most people might well know and care enough to enforce a significant level of accountability. But though administrators’ decisions may indirectly affect these issues, they ordinarily will be far too narrow and technical to generate much public interest, even if the public knew about them (which it in all likelihood does not).

Polarization magnifies the problem. Members of Congress may feel that tough party discipline shrinks their role as law makers, leaving intervening with agencies as one of the few remaining tasks that invigorate their sense of accomplishing something. A frontal attack on delegations to agencies may seem quixotic and not worth the substantial investment in energy and political capital, for as party loyalty tends to trump institutional loyalty, members can expect little or no support from opposition colleagues. Thus, the democratic potential of congressional action is sharply reduced.

At the same time, because polarization tends to impede congressional action, it also may incentivize the executive branch aggressively to counter the policy vacuum, moving unilaterally to issue broad regulations. For example, President Obama, faced with a recalcitrant Congress (“We can’t wait”

Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, Apr. 23, 2012, at A1.

But though members may dispute specific executive actions, rarely do they seek structural changes that would make such actions impossible – possibly, because they understand that their party may soon own the White House and want the discretion that the current executive exercises. Members who intervene over specific regulations may be able to claim credit for something; those who strive to change the system likely will be unable to claim credit for anything.

For a number of years, it was liberals who seemed most appalled by the ever expanding practice of redelegation. Justice Douglas considered public interest “too vague a standard to be left to free-wheeling administrators. They should be more closely confined to specific ends or goals.”

Go East, Young Man: The Early Years 217 (1974).

Relatedly, the eminent political scientist, Theodore J. Lowi, thought that redelegation enabled government to buy off groups with favors, shutting out the public and forestalling wholesale attacks on such fundamental problems as racism and inequality. So long as this approach prevailed, it would be impossible to rescue the country from the resulting quagmire, which he termed “Policy without law.”

Theodore Lowi, The Politics of Disorder xvii–xviii (1974).

Liberal opposition to redelegation, however, seems today to be very much a thing of the past. Instead, liberals seem more likely to insist that vast administrative discretion and redelegation are essential if society’s most significant and pressing problems are to be addressed. If agencies specially equipped for the tasks are not trusted to confront the problems, they reason, who will? There are sufficient controls in place, legal and psychological, they believe, to keep the agencies in line. More controls imposed by courts lacking the requisite knowledge, skills, and experience, would hamstring the agencies, causing hardship greater than the abuses now tolerated as unavoidable costs of doing business.

Now, it is conservatives who voice their opposition. Emmett McGroarty, Jane Robbins, and Erin Tuttle believe that redelegation has been a stealth instrument that has weakened the constitutional role of the states in order to empower the central bureaucracy.

Emmett Mcgroarty, Jane Robbins, & Erin Tuttle, Deconstructing the Administrative State: The Fight for Liberty (2019); Peter Wallison, Judicial Fortitude: The Last Chance to Rein in the Administrative State (2018).

More than this, conservatives blame redelegated administrative discretion for enabling the growth and dominance of big government and the regulatory empire that has emerged to do its work. “The rationale for this virtually complete abandonment of the nonredelegation principle is simple: Congress believes – possibly correctly – that the modern administrative state could not function if Congress were required to make a significant percentage of the fundamental policy decisions.”

Jamelle C. Sharpe, Judging Congressional Oversight, 65 Admin. L. Rev. 184 (2013).

To liberals, this argument gets things precisely backwards. They see a very broad public consensus supporting the programs identified with the administrative state.

Bruce Ackerman, We The People: Foundations 47–50 (1991).

If the dispute over delegation were merely a quarrel between abstractions, it might attract the interest only of ideologues and narrow specialists. But it has become perhaps the principal intellectual arena where the legal struggle between liberalism and conservatism is played out, “the legal equivalent of mortal combat.”

Gillian E. Metzger, The Roberts Court and Administrative Law, Sup. Ct Rev. 1 (2018)..

Recently, the Supreme Court has indicated that it may, at long last, revisit the redelegation issue. Gundy v. United States (2019), concerned Herman Gundy, who was convicted of giving cocaine to a minor girl and raping her. Congress’ Sex Offender Registration and Notification Act of 2006 (SORNA) required all sex offenders convicted or serving prison time after its enactment to join a nationwide registry for sex offenders, but left it to the attorney general to determine whether and how the law applies to offenders convicted before its enactment.

34 U.S.C. § 20911-13 (2006).

Speaking for a liberal plurality, Justice Kagan found that SORNA had adequately limited the attorney general’s discretion by requiring him, by implication, to implement the law “as soon as he thought it feasible to do so.”

Gundy v. United States, 139 S. Ct. 2116, 2125 (2019).

In a dissent longer than the majority opinion, Justice Gorsuch, long a foe of redelegation, argued that redelegation “undercuts” accountability, dismissing the intelligibility principle as having “no basis in the original meaning of the Constitution, its history, or even the decision from which it was plucked.”

Id. at 2139.

Gundy failed to change redelegation doctrine, yet it may well be the harbinger of changes to come. The very fact that the Court agreed to hear the case – the first delegation case in nearly two decades – when there was no conflict among the circuit courts indicates a readiness, perhaps an eagerness, to reconsider the issue. Moreover, the addition of Justice Kavanaugh, known for his reservations about delegation, may mean that there is now a majority supporting that position. In Paul v. United States (2019), a redelegation case the Supreme Court declined to hear, Kavanaugh, sitting as a D.C. circuit judge, declared that Gorsuch’s “thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”

Paul v. United States, 140 S. Ct. 342 (2019).

Does “this turn against congressional delegations signif[y] a profound transformation in our political and intellectual life”?

J. Benton Heath, From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States, 114 Nw. U. L. Rev. 1723, 1727–28 (2020).

A second option would be to continue the status quo, pretending that there is really no constitutional problem. The Constitution bans redelegation, Justices might admit, but what Congress has done is not redelegation, but merely rule making. Nearly everyone recognizes that this verbal sleight-of-hand does not solve the problem, but rather only denies that a problem exists. This option possesses the enormous advantage of continuing things as they are, and plainly appeals to the Court’s liberal faction. But it also offers nothing to its opponents, who seem unlikely to quietly surrender.

Justice Gorsuch, in his Gundy dissent, pointed to intermediate options. Highlighting the importance of the criminal nature of the regulation, he noted that the crime of which Gundy was convicted literally would not have existed, save for the attorney general’s action. Redelegation meant that “a single executive branch official [could] write laws restricting . . . liberty,” notwithstanding that the Framers considered the “federal government’s most dangerous power was the power to enact laws restricting the people’s liberty.”

Gundy, supra note 140, at 2131, 2133 (2019).

Underpinning Gorsuch’s argument was a pair of distinctions he drew: privileges versus rights and fact finding versus policy making. If privileges and fact finding were involved, he clearly would be much more likely to uphold redelegation than if rights and policy making were involved. In Gundy, he believed that rights and policy making were involved. Rejecting the intelligible principle standard as useless, he would return to “fill up the details,” a test set down in a 1911 case involving grazing rights.

United States v. Grimaud, 220 U.S. 506, 517 (1911).

Another option might be to confine redelegation to minor matters or incidental powers. As a prominent originalist put it, “Some powers are so great, so important, or so substantive, that we should not assume that they were granted by implication, even if they might help effectuate an enumerated power.”

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738, 1749 (2013).

If I hire someone to manage my restaurant, she does not need to ask me if she has the authority to buy tomatoes. That power is incidental to her function as manager. But if she wants to double the size of the restaurant or change the menu from Italian to Welsh or hire her son as chef, I might want to insist on a right of approval. Where on the spectrum between buying tomatoes and doubling the size of the restaurant does the decision cease to be incidental? If she wants to repaint the dining room, does she need to talk to me? Would it depend on whether she chose a different shade of its current white or instead a chartreuse to match the color of her daughter’s hair? It is hard always to be certain where to draw the line, and as the two of us each have our own interests and perspectives, we can hardly pretend to objectivity. So it is with delineating the boundaries of incidental powers for the purpose of resolving redelegation controversies.

In FDA v. Brown & Williamson (2000), the Supreme Court considered an effort by the Food and Drug Administration to regulate children’s access to tobacco products. The Court highlighted a provision of the United States Code that “marketing tobacco constitutes one of the greatest basic industries of the United States,” and concluded that Congress did not intend to delegate such a major decision to the FDA.

529 U.S. 120, 137.

Justice Kavanaugh has emerged as the chief proponent of the major question exception.

Jonathan H. Adler, Will Kavanaugh Curb Sloppy White House Deregulation?, N.Y. Times (July 16, 2018), available at https://www.nytimes.com/2018/07/16/opinion/brett-kavanaugh-supreme-court-administrative-state.html.

From 2009–2017, as a political gesture congressional Republicans proposed the REINS Act (Regulations from the Executive in Need of Scrutiny) that would have necessitated that all major rules be approved via a joint resolution, making it much harder for agencies to generate regulations, but it never was adopted.

An interesting question is whether President Trump’s travel bans could survive such a major exception test. In Trump v. Hawaii, he claimed that 8 U.S.C. §. 1182 (f) authorized the President to prevent the entry of foreign nationals he considers “detrimental to the interests of the United States . . . for such period as he shall deem necessary . . . or impose on the entry of aliens any restrictions he may deem to be appropriate.” The provision did not define “interest” nor did it require the President to present evidence that the ban was a reasonable means to that end, but it did allow the President on his own to criminalize conduct that had not been criminal. Targeting a major policy, the provision would seem to lack an intelligible principle. Additionally, that it might imply a power to override congressionally authorized visa categories might also pose separation of power issues. Chief Justice Roberts ruled that as the provision “exudes deference to the President in every clause . . .the proclamation falls well within this comprehensive delegation.” 138 S. Ct. 2392, 2408 (2018). It is precisely the exuding of deference that raises redelegation concerns.

The judicial combat over redelegation is most immediately focused on Chevron v. Natural Resources Defense Council (NRDC), decided in 1984, universally described as “the most famous doctrine in all of administrative law.”

Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory Of Legal Interpretation 201 (2006); Joshua Matz, The Imminent Demise of Chevron Deference?, Take Care Blog (June 21, 2018), available at https://takecareblog.com/blog/the-imminent-demise-of-chevron-deference

The Chevron case arose out of the Clean Air Act of 1977,

Pub. L. 95-95, 91 Stat. 685.

Justice Stevens, writing for a unanimous Court, acknowledged that if Congress’ statutory intent were clear, agencies and courts had to follow it; “that is the end of the matter.”

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. 467 U.S. 837, 842 (1984).

Initially, conservatives lauded Chevron, perhaps because the agencies that were empowered were part of the Reagan administration. The Pacific Legal Foundation and the Mid-America Legal Foundation, both conservative think tanks, submitted amici briefs in support of deference, Justice Scalia, an expert in administrative law, defended the decision as implementing congressional intent,

Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 517. On the Court, he also favored Chevron deference, as in Whitman, supra note 69, at 473–75; Gonzales v. Oregon, 546 U.S. 243, 301 (2006); City of Arlington, supra note 154, at 299.

Critics have attacked Chevron and its progeny as instances of judicial abdication

Gorsuch, J., Gutierrez-Brizuela v. Lynch, 834. 3d 1142 (10^th Cir. 2016).

If the charge of judicial abdication suggests no specific remedy, more focused critiques have called for particular responses. For example, in Auer v. Robbins (1997), the Court decided that courts should defer to an agency’s interpretation of its own regulations,

519 U.S. 452, 461.

Prophecy is always treacherous, but it seems clear that redelegation will neither remain intact nor be entirely struck down. Hence, much of the overblown rhetoric the controversy has inspired seems beside the point, especially the back-and-forth on democracy. No one expects Congress to vastly broaden its legislative mandate nor the agencies to relinquish their administrative responsibilities. Democracy, we recognize, is more about choosing leaders than controlling their policies. We may imagine that the political branches are the great compromisers. But, as we shall see, courts compromise, too.

To delegate or redelegate? The weak-kneed reply (surprisingly) received classic expression from John Marshall: “” It will not be contended that Congress can delegate to the courts, or to any tribunal, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825).