Nondelegation Doctrine
Congress cannot transfer power to enact legislation to administrators or president
-Very lenientdoctrine – basically just rhetorical formalism
-just need to give meaningful standard (intelligible principle – See Touby) in statute
-only two violations of doctrine to this date (both in 1935)
-Amalgamated Meat Cutters v. Connally (D.D.C. 1971) : Pres. Nixon delegated authority (under statute) to Cost of Living Council to stabilize prices and wages
-not unconstitutional because standards [1) statute demarcated limited time period; 2) power to be exercised was general, not industry specific; 3) history of price-wage controls; 4) APA applied; 5) agency will develop standards; and 6) subject to judicial review]
-shows non-delegation doctrine isn’t much because agency had a lot of power, standard is “anything you deem appropriate” and judicial review not much
-statute had no baseline standards
-APA didn’t apply because no rules adopted
-Touby v. United States (1991) : amendment to Controlled Substances Act allowing AG to deem a drug a controlled substance if imminent hazard to public safety provided specific enough standards to be constitutional
-Whitman v. American Trucking (2001) : EPA can’t take restrictive interpretation of statute b/c that’s meaningless interpretation of non-delegation doctrine; EPA tried to be own authority by adopting rules to set out criteria for air quality levels but can’t restrict itself. Either constitutional or not and here it was.
-Agency can’t cure unlawful delegation of legislative power by adopting its discretion in limiting construction of statute – so contra Sun Ray
-DC Circuit had said that should make rules to provide accountability
-JM – Nondelegation doctrine difficult because it’s synonymous with substantive due process
-if statute too specific, may make mistake b/c agency better suited
-if too general, agency may not carry out statute as we desire
-every agency has agenda and discretion
-Sun Ray Drive-In v. Oregon Liquor Control Comm’n (Or. Ct. App. 1973) : Court cannot review facts (of denial of liquor license) because no standard for granting license – if legislature doesn’t make standards, agency must
-order vacated with instructions on commission to develop standards
-cites “common law” of agency accountability which SC in Whitman tells us doesn’t exist in federal law (but APA has common law basis)
-essentially agency makes authority legitimate – focuses on procedural due process via rule of law rather than traditional non-delegation doctrine
-Court has begged question of whether admin action is reviewable
-So compare Whitman (either valid or invalid) to Sun-Ray (cure invalidity by adopting standards)
-JM – doctrine basically non-issue but some appeal for dealing w/ accountability and rule of law claims
-some people suggest non-delegation should be used for delegation to private parties (e.g., Medicare decides insurance claims)