When Delegation Begets Domination: Due Process of Administrative Lawmaking
96 Pages Posted: 18 Mar 2011 Last revised: 22 Nov 2011
Date Written: March 15, 2011
In federal administrative law, the nondelegation doctrine purports to forbid Congress from entrusting its “legislative powers” to federal administrative agencies. The Supreme Court developed this doctrine during the nineteenth century to safeguard republican values embedded in the Constitution. Over time, however, the Court has loosened the doctrine’s grip, permitting federal agencies to wield broad lawmaking powers subject only to minimalist “intelligible principles” established by Congress. The Court has defended this approach on pragmatic grounds, arguing that Congress cannot perform its essential legislative functions without entrusting lawmaking authority to administrative agencies. What the Court has never adequately addressed, however, is the extent to which congressional delegation potentially undermines liberty by instituting domination - the capacity for arbitrary state action. Although the Court continues to invoke the nondelegation doctrine’s republican ideals, it has yet to articulate a coherent legal theory to explain how its anemic review of congressional delegations can be squared with the Constitution’s liberty-promoting checks and balances.
This Article contends that courts can reconcile administrative lawmaking with the Constitution’s republican design, but only if they abandon the nondelegation doctrine’s antiquated separation-of-powers rationale. In its place, courts should focus upon due process as the primary constitutional constraint on congressional delegation. Although the link between delegation and due process has received only sparse attention in legal scholarship, the Supreme Court has employed due process analysis in a variety of cases involving both state and federal delegations. Three general principles inform these cases: to ensure that congressional delegation does not beget domination, agency lawmaking must be (1) constrained by a basic substantive standard, (2) channeled through fair and deliberative administrative procedures, and (3) subject to political accountability and judicial review. This subterranean due process model challenges the conventional wisdom that due process is inapplicable to agency rulemaking. It also has a variety of important - and potentially controversial - implications for other areas of federal administrative law, including the scope of Chevron deference, the Administrative Procedure Act’s applicability to presidential lawmaking, and the constitutional status of federal delegations to states, tribes, private entities, and international organizations.
Keywords: nondelegation doctrine, delegation, republicanism, due process, administrative law, administrative procedure, rulemaking, separation of powers
Suggested Citation: Suggested Citation