Disciplining Delegation After Whitman v. American Trucking Ass'ns

Abstract:     
The Supreme Court's recent reversal of the D.C. Circuit's decision in Whitman v. American Trucking Ass'ns brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that Ashwander v. TVA provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional law to require agency-generated standards because administrative law provides an adequate non-constitutional law ground for this purpose. Deferring to administrative law avoids the need to revive the constitutional nondelegation doctrine or impugn the constitutionality of a statutory delegation. Moreover, administrative law offers a theoretical foundation and a practical framework for imposing an administrative standards requirement.

Professor Bressman also argues that the Ashwander principle begins to explain and justify the Supreme Court's opinion in American Trucking. The Supreme Court in American Trucking rebuked the D.C. Circuit for applying constitutional doctrine to require an agency to supply limiting standards where Congress had not. It also denied the D.C. Circuit the power to decide that agencies rather than courts (indeed, the Court) could supply narrowing constructions of statutory delegations when constitutionally required. This reading brings American Trucking in line with other recent cases in which the Court has corrected other governmental actors for exceeding the limits of their assigned roles.

But, Professor Bressman contends, American Trucking did not foreclose the possibility of requiring administrative standards under administrative law. The Court did not pretend that the nondelegation doctrine actually forces Congress to provide standards that meaningfully guide and limit administrative discretion. Moreover, the Court hinted to Judge Williams that the proper way to require supplemental administrative standards was under administrative law rather than constitutional law. Viewed this way, the Court accepted the learning of Ashwander, guided by the additional impulse of wanting the last word on matters of constitutional interpretation.

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