Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Some legal scholars have suggested that delegations to governmental entities are interpreted through other “canons” of statutory construction and principles of statutory interpretation.1 These canons and principles have helped the Court to define the constitutionally acceptable degree of discretion, deference, or direction given by Congress to a delegee.

These complementary canons and principles have restricted the powers delegated by Congress, indirectly enforcing the separation of powers principles of the nondelegation doctrine. For example, the Supreme Court has sometimes limited the scope of an agency’s delegated authority (and Chevron deference2 ) under the so-called “major questions” doctrine.3 Under this doctrine, the Court has vacated administrative regulations on the ground that “Congress could not have intended to delegate a decision of such economic and political significance to an agency” without a clear statement of its intention.4

For matters that “affect the entire national economy” or go beyond the “traditional authority” of the delegee, Congress, in the Court’s opinion, must provide “substantial guidance.” 5 This additional level of guidance appears to be a more stringent version of the “intelligible principle” standard that has been used by the Court for delegation challenges. In West Virginia v. Environmental Protection Agency, the Supreme Court expressed doubt that Congress intended to provide the Environmental Protection Agency with authority to cap carbon dioxide emissions so as to “force a nationwide transition” from fossil fuel-generated electricity.6 The Court stated: “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme . . . . A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” 7 Similarly, in King v. Burwell,8 the Court considered whether states participating in a federal health care exchange were eligible for tax credits under the Patient Protection and Affordable Care Act.9 The Court declined to apply the Chevron deference to the statutory interpretation of the Internal Revenue Service (IRS), holding that this was an “'extraordinary case’” in which the Court had “'reason to hesitate before concluding that Congress’” implicitly delegated to the IRS the authority to “'fill in the statutory gaps.’” 10

The Supreme Court has also enforced nondelegation principles through the canon of constitutional avoidance, taking a narrow view of a statutory delegation in order to avoid potential constitutional conflicts with the nondelegation doctrine.11 In a 1974 case, National Cable Television Association v. United States, the Court avoided potential delegation concerns in a challenge to the Federal Communications Commission’s (FCC’s) authority to assess fees against regulated parties to cover their operating costs.12 The Independent Offices Appropriations Act directed federal agencies to set fee levels by taking into consideration “direct and indirect cost[s] to the Government, value to the recipient, [and] public policy.” 13 Relying on Schechter Poultry and J.W. Hampton, the Court declined to read the statute as raising a constitutional delegation question of whether the Act delegated taxing authority to the FCC, determining that “the [delegation] hurdles revealed in those decisions lead us to read the Act narrowly to avoid constitutional problems.” 14 The Court narrowly construed the statute to limit the FCC’s authority to set fees that reflect only the “value to the recipient” and not the full costs of regulating.15 While the Supreme Court later distanced itself from the reasoning of National Cable Television in Skinner v. Mid-America Pipeline Company, explaining that “the delegation of discretionary authority under Congress’s taxing power is subject to no constitutional scrutiny greater than that we have applied to other nondelegation challenges,” 16 the 1974 decision illustrates that the nondelegation doctrine may not be “dead” but continues to survive through judicial canons and principles that sustain the separation of powers roots of the doctrine.17

Footnotes

1

See Nat’l Fed’n of Indep.Bus. v. Dep’t. of Labor, Occupational Safety & Health Admin., Nos. 21A244 and 21A247, slip op. at 4 (2022) (per curiam) (Gorsuch, J. concurring) ( “Both [the nondelegation and major question doctrines] are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.” ). See also Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 22 (2010) (explaining that “Ever since the [1980] Benzene case, the Court has sometimes construed statutes narrowly to avoid nondelegation concerns.” ); Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 990–91(2007) (describing as an alternative to enforcing the “intelligible principle” standard the doctrines of statutory interpretation and judicial canons); Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 316, 330 (2000) (explaining that “nondelegation canons” can “forbid administrative agencies from making decisions on their own” and “impose important constraints on administrative authority, for agencies are not permitted to understand ambiguous provisions to give them authority to venture in certain directions; a clear congressional statement is necessary” ); Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399, 1408 (2000) ( “[The Supreme Court] has continued to identify and address delegation concerns through means other than the nondelegation doctrine.” ).

2

See, e.g., Massachusetts v. EPA, 549 U.S. 497, 531 (2007) (invoking major questions doctrine in not affording deference to the agency’s construction of the statute); Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 323–24 (2014) (same).

3

See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (overruling administrative regulations on the ground that “Congress could not have intended to delegate a decision of such economic and political significance to an agency” without a clear statement of its intention). See also id. at 159, citing Hon. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ( “A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.” ).

4

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). See also King v. Burwell, 576 U.S. 473, 485–87, 498 (2015) (holding that the Court had “reason to hesitate before concluding that Congress” implicitly delegated to the IRS the authority to “'fill in the statutory gaps’” in determining whether states participating in a federal health care exchange were eligible for tax credits under the Patient Protection and Affordable Care Act) (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 159); Util. Air Regulatory Grp. v. Envtl. Prot. Agency, 573 U.S. 302, 323–24 (2014) (holding that the Environmental Protection Agency’s (EPA’s) regulations represented an unreasonable reading of the authority delegated in the statute because the agency’s interpretation would have constituted “an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization” ).

5

See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) ( “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” ) (quoting Brown & Williamson Tobacco Corp., 529 U.S. at 160); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) ( “[Congress] must provide substantial guidance on setting air standards that affect the entire national economy.” ). See also Loving v. United States, 517 U.S. 748, 772 (1996) ( “Had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving’s last argument that Congress failed to provide guiding principles to the President might have more weight.” ).

6

West Virginia v. Env’t Prot. Agency, No. 20-1530, slip op. at 31 (June 30, 2022).

7

Id.

8

576 U.S. 473 (2015).

9

42 U.S.C. § 18031; 26 U.S.C. §§ 36B(b)–(c).

10

King, 576 U.S. at 485–86 (quoting Brown & Williamson, 529 U.S. 120, 159 (2000)).

11

See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) ( “[O]ur application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.” ). See also Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (acknowledging that the “sweeping delegation of legislative power [to the Secretary of Labor to set worker exposure standards] . . . might be unconstitutional” under the nondelegation doctrine and imposing a “construction of the [Occupational Safety and Health Act] that avoids this kind of open-ended grant” that required the Secretary to find a “significant risk” to employee health before adopting a standard). See also Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 4.8(b) (5th ed. 2012) ( “The Supreme Court sometimes interprets grants of powers to agencies narrowly, so as to avoid constitutional issues regarding the scope of congressional power or constitutionality of the delegation to the agency.” ); John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 223, 242–43 (2000) ( “The nondelegation doctrine . . . now operates exclusively through the interpretive canon requiring avoidance of serious constitutional questions. . . . Despite the Court’s apparent refusal to enforce the nondelegation doctrine directly, cases such as Brown & Williamson illustrate the Court’s modern strategy of using the canon of avoidance to promote nondelegation interests. Where a statute is broad enough to raise serious concerns under the nondelegation doctrine, the Court simply cuts it back to acceptable bounds.” ) (citing Brown & Williamson Tobacco Corp., 529 U.S. 120).

12

National Cable Television Ass’n v. United States, 415 U.S. 336, 337–41 (1974).

13

Id. at 337.

14

Id. at 342.

15

Id. at 343–44.

16

490 U.S. 212, 221 (1989).

17

See generally Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000); John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223 (2000).