Nondelegation on Stilts

Abstract

Five sitting Supreme Court justices appear ready, perhaps eager, to adopt a more assertive approach in applying principle that Constitution forbids Congress to delegate legislative power to any other person or institution. In several separate opinions in recent cases, conservative justices appear to converge on at least one new test for evaluating legislative delegations: a delegation is improper when Congress hands off an important policy issue to executive branch for decision, and executive uses that delegated power to control private conduct. The Supreme Court has never struck down a federal statute based on such a test, and it should not start doing so now. Indeed, if conservative justices truly do not want to substitute their own views of wise public policy for those of political branches, they should run, screaming, away from approach they have proposed for legislative delegations. A test based on justices' perceptions of importance of underlying policy issues cannot help but simply reflect justices' own political preferences. And a test skewed to disfavor regulatory interventions while giving non-regulatory choices a free pass flouts Court's decision in Whitman v. American Trucking Associations, which unanimously held that an agency cannot fix a statute's non-delegation problem by restricting its own power. An asymmetrical test also reflects a narrow and privileged view of liberty that cannot be rescued by pretending that the whole of people consented to conservative justices' vision of separation of powers.