Nondelegation Debunked and Relationship to APA and Deference (3/19/21)

I write today again on administrative law issues that have occupied some scholarly interest starting with my teaching of Federal Tax Procedure starting in the 1990s.  The impetus for this blog entry is a fresh article on the nondelegation doctrine – fresh meaning recently published and a fresh accounting of the history related to the so-called nondelegation doctrine.  The article is Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277 (2021), here.  See also a Slate interview of the authors, Mark Joseph Stern, Neil Gorsuch Supports an Originalist Theory That Would Destroy Modern Governance (Slate 3/19/21), here.  I recommend both reads.

The full bore nondelegation doctrine on which the article is that Congress cannot delegate legislative powers to the Executive Branch.  The doctrine has no current sway in the decided cases.  Rather, as interpreted for some time now, Congress may delegate legislative powers when “an intelligible principle” which “clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” United States v. Henry, 888 F.3d 589, 596 (2d Cir. 2018);   The Supreme Court echoed this holding in the plurality opinion in Gundy v. United States, 583 U.S. ___, ___, 139 S.Ct. 2116, 2123 & 2129 (2019)

The authors claim that the so-called nondelegation doctrine has no basis in the history relevant to the original understanding of the Constitution.  As they point out, its use in the 1930s was to rein in the New Deal and that failed miserably as the nondelegation doctrine faded into a well-deserved obscurity.  But as the Law Review article and the Slate article note, it has roared back, fueled first by the ideology of the most ideological Supreme Court Justice, Justice Thomas.

From the Law Review article (p.285, footnote omitted):

In American Trucking, Justice Thomas wrote separately to say that “[o]n a future day . . . I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”  Scholars immediately took up his call to build an originalist case for the nondelegation doctrine.

 The Law Review article then covers the supposed scholarly thrashing at Justice Thomas’ invitation.  As explained in the Slate Article, scholars then “write long law review articles and books that give the theory a patina of historical credentials.” 

Professors Mortenson and Thomas argue that the patina of credibility for nondelegation is illusory.

I think this process of scholars and even judges taking up an ideological call for support may be what has happened in the field of deference and related claims of the demise of the interpretive regulation.  The current iteration of deference is Chevron deference, but deference not unlike Chevron existed long before Chevron (decided in 1984) and well before the APA, so that, as two renowned scholars have recently noted, the original meaning of the APA incorporated the concept of deference (and therefore is not inconsistent with APA § 706.  See Ronald M. Levin, The APA and the Assault on Deference (forthcoming), https://ssrn.com/abstract=3761989; Cass R. Sunstein, Chevron as Law, 107 GEO. L.J. 1613, 1641–57 (2019), here (as cited in Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review SSRN: https://ssrn.com/abstract=3758516).  For other Sunstein articles on the original meaning of the APA with respect to deference and the APA, see Cass R. Sunstein, Chevron Is Not Inconsistent with the APA (Notice & Comment 9/16/20); and Cass R. Sunstein, Is Chevron Inconsistent with the APA?  https://ssrn.com/abstract=3742429.   I agree with Professors Levin and Sunsein; my musings on the subject are here: John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration https://ssrn.com/abstract=3400489 (I am in the process of a substantial revision to this article which I will likely post in the next month or so.).

The concept of deference (whether pre-Chevron deference or post-Chevron deference was long established without controversy until perhaps the 1990s at the earliest and then was taken up by scholars and judges suspicious of the administrative state.  As with nondelegation, these scholars and judges took their claims well beyond what the history of deference and the APA would or should take them.