Robert Jackson's Non-Delegation Doctrine

Abstract

This Essay explores Robert Jackson's theory of the non-delegation doctrine, which he first articulated in a brief that he filed as Solicitor General in Currin v. Wallace. The Supreme Court decided Currin without addressing Jackson’s broader arguments and his brief was forgotten. But the Currin brief deserves careful scrutiny both for the quality of its reasoning and for its two conclusions on non-delegation. First, Jackson argued that there are no internal limits on Congress’s discretion to delegate authority to executive agencies or independent boards. Second, he thought that there were such limits on Congress’s discretion to delegate authority to the President himself. The first point confirms, albeit in Jackson’s inimitable prose style, the legal consensus since 1935. His second point, though, would transform separation-of-powers law by extending constitutional limits to the authority that Congress may confer on the President for domestic affairs rather than focusing on only what Congress may take away from the President. Jackson’s brief in Currin also clarifies his canonical concurrence in Youngstown Sheet and Tube Co. v. Sawyer striking down President Truman’s seizure of the nation’s steel mills during the Korean War. In setting forth the first of his three categories for judging the legality of a presidential act, Justice Jackson explained: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at his maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This statement can be read to mean that a presidential action based on a congressional authorization is invalid only if the act is beyond the reach of the federal government. But that reading is wrong. Jackson qualified the phrase “all that Congress can delegate” with a footnote stating that executive action could be invalid because Congress cannot delegate authority to the President. Any ambiguities on that score are resolved by reading the Youngstown concurrence in conjunction with the Currin brief, where Solicitor General Jackson claimed that congressional delegations to the President could be unconstitutional. Embracing Jackson’s non-delegation doctrine would mean that federal statutes that delegate power over domestic affairs to the President would be subject to a constitutional attack on non-delegation grounds. The best example of such a vulnerable delegation is the National Emergencies Act, which gives the President unfettered discretion to declare an emergency and hence gain extraordinary powers. Under Jackson’s theory in the Currin brief and in Youngstown, a constitutional argument can be made against the parts of the National Emergencies Act involving domestic affairs. This non-delegation challenge would also draw from Justice Jackson’s discussion of emergency powers in Youngstown, which implied that an indefinite delegation of such broad authority by Congress to the President himself would be unlawful.