A Two Tiered and Categorical Approach to the Nondelegation Doctrine

Abstract

This essay was written for a book of essays on the nondelegation doctrine to be published by the American Enterprise Institute. Building upon an earlier article, I explore the original meaning of the Constitution’s prohibition on the delegation of legislative power to the executive. I make two main claims. First, I argue that there is a two tiered nondelegation doctrine, with a strict tier extending to certain areas and a lenient tier extending to other areas. Although the strict tier imposes very substantial restrictions on delegation, the lenient tier does not. The lenient tier covers legislation in various areas, including spending laws, the territories, foreign commerce, and foreign and military affairs. The most important area that is covered by the strict tier is domestic law regulating private rights. Second, I argue that the strict tier imposes a categorical prohibition on the delegation of policymaking discretion to the executive. Under my approach, the executive does not exercise policymaking discretion when it undertakes law interpretation or genuine fact finding. Such activities may involve some uncertainty, but so long as the executive is genuinely seeking the meaning of the statute or finding facts, it is not exercising policymaking discretion. Unlike other strict approaches to the nondelegation doctrine that prohibit the executive from being given “too much” policymaking discretion, my approach categorically forbids the executive from being given any policymaking discretion in the areas governed by the strict tier. Thus, my approach avoids criticisms, like that of Justice Scalia, that argue that no distinction in kind can be drawn between statutes that permissibly and impermissibly delegate policymaking discretion.