The Non-Delegation Non-Doctrine

The phrase “non-delegation doctrine” produces in the typical legal professional something between a patronizing sigh and a disbelieving eye-roll. Most of us have learned that, while there was once a doctrine with that name, it died before most of the current Supreme Court was born. Apart from the grumblings of a few textualist nitpickers and the naïve confusion of first-year students trying to pass their administrative law exams, analysis of the subject is hard to come by.

The Non-Debate on Non-Delegation

The differing attitudes towards the non-delegation doctrine can be summarized as pragmatic resignation talking past academic indignity. Most view the erstwhile doctrine as nothing more than a quaint artifact from a bygone era; like a signpost to a fallout shelter, it serves only as a defunct warning against what turned out to be an overblown threat. A smaller group identifies a revenant doctrine, a perhaps dated but still potent principle meant to rein in a government that grows more attenuated from and less accountable to its people with every rule it creates. Neither camp seems to address the other’s points head-on, though, to the considerable consternation of newcomers to the subject. The famous Peerless case provides an apt analogy: two ships bearing the same name and leaving the same port on different days cause a confusion so great that everyone involved is absolved of liability. Similarly, as it now stands between the two groups of scholars, the term “non-delegation doctrine” admits such inapposite interpretations that its definition is so impermissibly vague that neither view can be said to confront the other. In particular, courts and scholars have been remarkably inconsistent in their approaches to analyzing private delegations to non-governmental groups. Some work must be done before the valid and relevant criticisms of each group may be combined into a useful jurisprudence.

A Dead Doctrine?

The majority of those faced with the issue recognize that political realities mean the non-delegation doctrine is unlikely to impact the administrative state anytime soon.[1] Pragmatists argue that the system’s success – that is, its continued growth unhampered by any unfavorable Supreme Court judgments since the New Deal era – implies that the non-delegation doctrine ceased to matter a very long time ago.[2] Some realists have gone so far as to say the doctrine never really existed in any meaningful way.[3] Even many of those who might seek to invoke the doctrine generally acknowledge that it has not made a meaningful appearance in American jurisprudence for several generations,[4] concluding that its noticeable absence signifies its de facto death.[5] If the doctrine does survive in the modern era, these pragmatists are quick to point out that the vague “intelligible principle,” if not a “craven watchdog,” is a toothless one.[6] The status of the non-delegation doctrine, they would say, is mostly academic at this point, and historical at that.

Or a Dormant Doctrine?

On the other hand, a small but vocal minority of academics argue that the doctrine is alive and well in the lower courts,[7] or simply finds application in less visible incarnations.[8] This group points to several decisions in state and district courts where non-delegation is either invoked by name or its hallmarks find their way into threshold tests of legitimacy.[9] Some find support of the doctrine’s continued relevance in dicta from recent Supreme Court decisions, which they say may indicate a resurgence, or at least a willingness to reexamine non-delegation’s role in the modern era.[10] Finally, regardless of any perceived death or dormancy, the group emphasizes that the doctrine’s motivating concerns remain relevant at least in the context of delegations to private parties.[11] Some point to a divergent line of cases indicating a separate “private non-delegation doctrine,”[12] while others view substantive due process as doing the work in its stead.[13] Common to both views is a non-canonical assertion of the non-delegation doctrine as existing on a separate level, apart from mere separation of powers arguments.

De-Jargoning

It is the difficulty in analyzing this last assertion which frames the larger issue best: a useful discussion of the non-delegation doctrine – its history, motivation, and modern applicability vel non – must specify exactly what the doctrine is.[14] This simple proposal highlights the underlying problem with the discourse on non-delegation as one of imprecision and overloaded terminology. The various things meant by “non-delegation” encompass divergent views of the doctrine’s motivation as expressed in its early cases, the legal basis or bases upon which the doctrine may still stand, and whether courts have treated the question coherently enough to justify the “doctrinal” status in our jurisprudence.[15] The nature of the problem thus exposed, the nature of a solution is clearly undertheorized – that is, there does not yet exist a formulation which treats the competing views of non-delegation in a manner allowing for direct comparison on their main points.[16] Particularly, a framework which addresses the theoretical bifurcation of private and public non-delegation motivations, application, and implications is conspicuously absent, rendering moot much of the discourse, at least insofar as doctrinal debate depends on common definition.

A Principle of Intelligibility

This Post posits such a framework, or at least the beginnings of one. In an attempt to reconcile the predominant views into something resembling a coherent discourse, one must begin by identifying the robust and independent factors underlying the formulations. An effective heuristic in this disentanglement requires making fundamental distinctions: between private and public delegations of legislative authority, between due process and political representation concerns, and between cautious interpretation and post hoc interpolation of judicial opinions. That is, when discussing a “non-delegation doctrine,” one should specify first whether the delegation is among the branches of government or outside of them; and if outside, whether one balks at a lack of due process involved or charges a counter-majoritarian effect; and in either situation, cleaving carefully to decisions considering the concern at hand, avoiding the rhetorical mess resulting when the delegations in Carter Coal[17] and J.W. Hampton[18] are purportedly reduced to a single coherent doctrine. Instead, before hunting for apropos opinions, a recognition of a near century’s worth of conflating these factors – private versus public, due process versus representation, and haphazardly back-formed jurisprudence versus rhetorically sound citations – militates in favor of figuring out exactly what it is one is hunting for. In short, it advises intelligibility in discourse, which requires intelligibility in principle.

A Delegation

This suggested proto-framework may not seem like much, but a cursory examination of recent case law reveals that scholars and judges alike seem to accept a unified non-delegation doctrine as gospel before performing rhetorical contortions to identify exactly how such a unified doctrine may or may not apply to a supposed delegation when it falls outside the tried and true (and moot) model of Congress giving legislative powers to the Executive.[19]

Using such a scheme, it is likely that the various theories and arguments permit reduction to cognizable factors, reconcilable and testable, which lead not only to the bifurcation of the term “non-delegation” but to a definition of each part which may answer the questions: what exactly is meant by the non-delegation doctrine? Does it matter today? Why or why not? In doing so, the majority’s beliefs regarding unimportance remain valid for a demarcated theoretical space, leaving room for the second group’s argument – deconstructed and disambiguated– to flourish in the remnants of that doctrinal space.

As one of the naïve and confused students myself, I hopefully delegate this exercise to a more scholarly mind than my own.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] See, e.g., David Horton, Arbitration as Delegation, 86 N.Y.U. L. Rev. 437, 470 (noting that even Justices thought unlikely to support broad delegation have upheld vast or vague instances.)

[2] See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 131-33 (Harvard 1980).

[3] See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002).

[4] See Rachel Christine Bailie Antonuccio, Note, Prisons for Profit: Do the Social and Political Problems Have a Legal Solution?, 33 J. Corp. L. 577, 588-89 (Winter 2008) (noting the diminishing Supreme Court engagement with the non-delegation doctrine since 1936.)

[5] See Alexander Volokh, The New Private-Regulation Skepticism: Due Process, Non-delegation, and Antitrust Challenges, 15 Engage: J. Federalist Soc’y Prac. Groups 35, 44 [hereinafter “Volokh I”] (citing Federal Power Comm’n v. New England Power Co., 415 U.S. 345, 352-53 (1974) (Marshall, J., dissenting).

[6] See Calvin R. Massey, The Non-Delegation Doctrine and Private Parties, 17 Green Bag 2d 157, 158 (Winter 2014) (demonstrating the “flaccidity” of the non-delegation doctrine’s requirements.)

[7] Id. at 157.

[8] See generally Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (Spring, 2000).

[9] Massey, supra note 6, at 165-66.

[10] See Alexander Volokh, The Shadow Debate Over Private Nondelegation in DOT v. Association of American Railroads, 2015 Cato Sup. Ct. Rev. 359, 380-81 [hereinafter “Volokh II”]; see also Antonuccio, supra note 4, at 589.

[11] See Massey, supra note 6, at 168.

[12] See, e.g., Horton, supra note 1, at 472.

[13] See Volokh I, supra note 5, at 44.

[14] See Sunstein, supra note 8, at 322.

[15] Id. at 322-23.

[16] See Volokh I, supra note 5, at 44-45.

[17] Carter v. Carter Coal Co., 298 U.S. 238 (1936).

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

[19] See Volokh I, at 21 and especially n. 195 (citing opinions in a Texas case which employed an explicitly private non-delegation doctrine, those opinions arriving at similar results on non-delegation via very different reasoning.); see also Volokh II, at 20-23 (attempting to unpack and square Justice Thomas’ view of the non-delegation doctrine’s roots with its application in his concurrence in DOT v. Ass’n of Am. R.R. 135 S. Ct. 1225.)

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