Rulemaking as Legislating
59 Pages Posted: 8 May 2014 Last revised: 22 Apr 2015
Date Written: October 3, 2014
The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules — rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional. Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with — or fails to cohere with — administrative law as a whole. This Article takes up that task, exploring what might happen to administrative law if the Supreme Court jettisoned the central premise of the nondelegation doctrine and frankly admitted that agency rulemaking constitutes an exercise of delegated legislative power. Specifically, this Article analyzes administrative law’s most central doctrines — including the test used to define legislative rules, Chevron and Auer deference, arbitrary and capricious review, procedural due process, and procedural constraints on agency rulemaking — and considers whether these doctrines stand in opposition to or work harmoniously with the nondelegation doctrine.
Ultimately, this Article concludes that some key administrative law doctrines operate under the assumption that agency rules flow from delegations of legislative power, putting those doctrines in direct tension with the current nondelegation doctrine. In contrast, other key administrative law doctrines — consistent with the nondelegation doctrine — refuse to view agency rulemaking through a legislative lens. Thus, if the Court held that Congress constitutionally can and routinely does delegate legislative power, some central administrative law doctrines would need to be modified. Although these doctrinal changes would have their costs, this Article ultimately asserts that the changes would be normatively desirable. Many of administrative law’s disparate doctrines would gain a more unified, coherent lens centered around legislative supremacy and congressional delegation, forcing courts to take more seriously the notion that agencies act as Congress’s delegate. In addition, the Court would free itself of the longstanding doctrinal fiction that legislative rules constitute the exercise of executive power.
Keywords: administrative law, delegation, nondelegation doctrine, deference, judicial review, separation of powers, Article I, Article II, constitutional law, legislative rules, non-legislative rules, legislative power, lawmaking
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