NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss Administrative Law, including the history of the administrative state and modern debates about its powers. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Let’s start with the title question - what is the non-delegation doctrine, and why does it matter? GARY LAWSON: The Constitution of the United States divides up powers of government among different institutions. It vests all legislative powers here and granted in Congress, it vests the executive power in the President and through the President and subordinates within administrative agencies. And it vests the judicial power of the United States in Federal Courts. Question is, what are the contours of that power? If Congress gives certain authority, to the President, to administrative agencies, to courts, for that matter, to private citizens or foreign countries, is there a point at which Congress is giving those other entities the legislative power that the Congress is vested with under The Constitution. That question, we lump under the heading of the non-delegation doctrine. Some of think it should be called the Non-Sub-Delegation Doctrine, because everything in The Constitution is a delegation of power from We The People to different institutions. The question is whether the institution of Congress is permitted to sub-delegate some portion of the power that its been given, its legislative powers to some other body. So the real question under the Non-Delegation or Non-Sub-Delegation Doctrine is, when would an exercise of power by an executive agency, say an administrative agency, crossover from being executive power and become legislative power instead? And the way I would phrase that is, is there a certain kind and quality of discretion that Congress just can't give to administrative agents? Suppose Congress created an agency. Let's call it The Goodness and Niceness Commission, and said to the agency, "We want you to promote goodness and niceness in all matters involving interstate commerce. That's your statutory mission. Go forth and promote goodness and niceness." Now if the agency went ahead and promulgated rules that it said we aimed at promoting goodness and niceness, would the agency be exercising executive power because it would be carrying out the precise wishes of Congress? It's reading what the statute says, where it's supposed to promote goodness and niceness. My goodness, that's what we're doing. Or would that give the agency such a kind and such a quality of discretion that it's no longer really what The Constitution means by executive power? That's what The Constitution means by legislative power. And if you think that that's what The Constitution means by legislative power, then the question is, can Congress sub-delegate that away? I think the answer to that question is no. And the reason I think not is because I look at The Constitution and the kind of document that it most looks like is a fiduciary instrument, where some people, in this case a fictitious person called We The People, vests a certain power in others to manage some portion of that original person's affairs. The Constitution looks a whole lot like that. And among that entire family of instruments, and they ranged from corporate charters to powers of attorney to guardianship instruments, lots and lots of documents in that era. The one thing they all had in common was a baseline presumption that when you vest those kinds of powers in an agent, in a fiduciary, someone to manage your affairs, they're supposed to do it themselves. That's why you picked them and not somebody else. And if you mean for them to sub-delegate that authority, you will say so in the instrument. It just doesn't make a lot of sense that you would construct an instrument that carefully identifies who's going to be exercising these powers, but if they really don't wanna do it, they can give it to somebody else. So I think the principle against sub-delegation of legislative authority is actually what we call over-determined. When is something that Congress grants to an agency giving that agency a kind and quality of discretion that crosses that line? It's no longer executive power. The agency is no longer implementing a statute. At this point, the agency is making the law, exercising legislative power. That is the difficult question. That is the question that theorists have been wrestling with for two and a quarter centuries. PUBLIUS: Discuss some of the history behind this question. Who were the first theorists or statesmen to struggle with it? GARY LAWSON: The Supreme Court first addressed the Non-Delegation Doctrine back in 1825, in an opinion by Chief Justice John Marshall. It was addressed in passing, because they didn't need to deal with the issue in the case, but Marshall made some observations about that doctrine that still have a lot of relevance today. He noted the big problem is figuring out where the lines are drawn among the legislative, executive, and judicial powers. In that particular case, Congress had given the Federal Courts power to promulgate their own rules of procedure, for how to execute judgements and things like that. The question was whether that was something that needed to be specified by Congress in legislation, or whether Congress could just say to the courts, "Oh, promulgate whatever rules of procedure you'd like." And Chief Justice Marshall recognized that the issue was whether or not the power given to the courts was something they could exercise as part of the judicial power. If it was, no problem. If it wasn't, if the only constitutional box that you could put that power in was the legislative power, you would have a sub-delegation problem. And in 1825, the Supreme Court took it as given that once the boxes are drawn and you've got something in the box, no, you can't sub-delegate legislative power out of the legislative power box. In that case, Chief Justice Marshall just didn't think that the power in question was exclusively in the legislative power box. What we got in 1825 was the first clear articulation of an attempt to figure out how to draw those boxes. What makes something legislative power rather than executive or judicial? And what Chief Justice John Marshall said 200 years ago, was that if it was an important matter, Congress has to resolve it in the legislation. It could leave to executive or judicial implication matters of, there are his words, not mine, "Less interest." So distinguishing important matters, those are the legislative matters. Matters of less interest, those can be given to other actors, because filling them in is executive or judicial. Over the ensuing 200 years, nobody; no court, no scholar, not I has been able to improve on Chief Justice Marshall's formulation. People have tried. Scholars more than courts. Courts haven't really tried much in the last 200 years. PUBLIUS: There may not be an improved formulation of the non-delegation doctrine but it’s certainly been treated differently by the courts in the last hundred years. When was the inflection point on this? GARY LAWSON: There were lots and lots of cases that reached the Supreme Court before 1935. All of those cases announced there was a principle against sub delegation of legislative authority. None of those cases actually articulated how you would know when that had happened. All of them found on the facts of those cases, that that hadn't happened, that whatever power Congress had given was actually executive power, didn't involve a sub delegation of legislative authority. The first time the limits were reached, was 1935. This was the new deal, the centerpiece of the new deal, was something called the National Industrial Recovery Act. To put it very crudely, the National Industrial Recovery Act made Franklin Roosevelt economic dictator of the United States. It allowed cartels of industries to draw up codes of conduct that would be legally binding on themselves, and all of their competitors. Those would be submitted to the President for approval. The President could approve them, could amend them, could scrap them, and write his own code of conduct. Those codes of conduct would function as law for all of the businesses in those industries throughout the United States. The jurisdiction under the statute extended in principle to all businesses. That's why I say it effectively made the President of the United States economic dictator. What were the criteria that the President was supposed to use in approving or writing these codes of conduct? Well there was a provision in the statute that listed all of the things that the President was supposed to be looking to. It's essentially every good, nice, wonderful thing you could possibly imagine, even when they were wildly in conflict. Promote industrial development, but beware of environmental concerns. Promote labor, but beware of costs. It's essentially an instruction to the President to promote goodness, niceness, and whatever other thing we can think of. That was too much for the Supreme Court. The Supreme Court actually found that, that statute delegated to the President some portion of the legislative power. Two aspects of that statute in two separate cases were found to violate the nondelegation doctrine. For the first time the nation's history in 1935, the Supreme Court not only announced a sub delegation principle, but enforced it. They did not, in either of those two cases, actually articulate how the lines were drawn. They just looked at this statute, and said, "Oh, come on, whatever the lines are, this is completely gone." That is the last time that the Supreme Court of the United States found that anything done by Congress was an unconstitutional sub delegation of legislative authority. PUBLIUS: What about the modern Supreme Court? Has there been any significant change in perspective on this issue? GARY LAWSON: If we're thinking about the present of the nondelegation, or non-sub delegation doctrine, it is since 1935, an unbroken string of United States Supreme Court decisions saying to plaintiff's, "You lose, you lose, you lose. Not only do you lose, you lose unanimously. Not only do you lose unanimously, we're sick and tired of hearing from you." What happened after the New Deal was that Franklin Roosevelt appointed a whole bunch of new Supreme Court judges, who were much less inclined to invalidate new deal innovations. In the wake of that, in the late 1930s, early 1940s, a whole series of statutes, they didn't sweep as broadly as the National Industrial Recovery Act, but which were systematically upheld, upheld, upheld. Supreme Court's last major pronouncement on this in 1989, surveyed all of this case law over the last half-century, and essentially said, "Oh, come on, stop bringing these challenges." Right? We uphold, as constitutional statutes authorizing agencies to regulate in the public interest, to create fair and equitable arrangements. To pursue the public interest, convenience, or necessity. It was a case called United States versus Mistretta in 1989. Justice Scalia was the lone dissenter in that case, and his dissent was not that the majority was too generous to Congress, it's that they weren't generous enough, right? He really, really wanted to stop hearing these claims. One of my favorite statistics between 1989 and 2002, if you tote up all of the Supreme Court decisions, and you count the votes on non-sub delegation issues, the vote was 53 to 0 in all of those cases combined against the sub delegation challenges. Well 53-0 is pretty impressive, but what's even more impressive, is they had to cast 53 votes. There are only nine votes in each case. Think of all the cases that kept coming up, they keep saying, "Don't bring these cases, you're going to lose, don't bring these ..." Lower courts keep ruling in favor of plaintiffs, and the Supreme Court kept having to reverse them. What about the likely future? Over the last 25 years or so, the only Supreme Court Justice who has openly called for reconsideration of the doctrine since 1935, who thinks that maybe the Court should take a closer look, and find some of these open-ended statutes sub delegations, was Justice Thomas. Justice Scalia wanted nothing to do with it. justice Scalia wanted nothing to do with the nondelegation doctrine, because for Justice Scalia, the worst thing in the world was for Courts to decide cases without clear, crisp rules for decision. He couldn't think of a crisp rule for decision about when something was in the legislative box, the executive box, and judicial box. His solution was that the Courts should just stay out of it. Justice Gorsuch has replaced Justice Scalia. Justice Gorsuch, as a lower court Judge, expressed some sympathy for Justice Thomas' position. Now two is less than nine, but two is more than one. Question is whether there's anything more than two going forward? NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss Administrative Law, including the history of the administrative state and modern debates about its powers. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Let’s start with the title question - what is the non-delegation doctrine, and why does it matter? The Constitution of the United States divides up powers of government among different institutions. It vests all legislative powers here and granted in Congress, it vests the executive power in the President and through the President and subordinates within administrative agencies. And it vests the judicial power of the United States in Federal Courts. Question is, what are the contours of that power? If Congress gives certain authority, to the President, to administrative agencies, to courts, for that matter, to private citizens or foreign countries, is there a point at which Congress is giving those other entities the legislative power that the Congress is vested with under The Constitution. That question, we lump under the heading of the non-delegation doctrine. Some of think it should be called the Non-Sub-Delegation Doctrine, because everything in The Constitution is a delegation of power from We The People to different institutions. The question is whether the institution of Congress is permitted to sub-delegate some portion of the power that its been given, its legislative powers to some other body. So the real question under the Non-Delegation or Non-Sub-Delegation Doctrine is, when would an exercise of power by an executive agency, say an administrative agency, crossover from being executive power and become legislative power instead? And the way I would phrase that is, is there a certain kind and quality of discretion that Congress just can't give to administrative agents? Suppose Congress created an agency. Let's call it The Goodness and Niceness Commission, and said to the agency, "We want you to promote goodness and niceness in all matters involving interstate commerce. That's your statutory mission. Go forth and promote goodness and niceness." Now if the agency went ahead and promulgated rules that it said we aimed at promoting goodness and niceness, would the agency be exercising executive power because it would be carrying out the precise wishes of Congress? It's reading what the statute says, where it's supposed to promote goodness and niceness. My goodness, that's what we're doing. Or would that give the agency such a kind and such a quality of discretion that it's no longer really what The Constitution means by executive power? That's what The Constitution means by legislative power. And if you think that that's what The Constitution means by legislative power, then the question is, can Congress sub-delegate that away? I think the answer to that question is no. And the reason I think not is because I look at The Constitution and the kind of document that it most looks like is a fiduciary instrument, where some people, in this case a fictitious person called We The People, vests a certain power in others to manage some portion of that original person's affairs. The Constitution looks a whole lot like that. And among that entire family of instruments, and they ranged from corporate charters to powers of attorney to guardianship instruments, lots and lots of documents in that era. The one thing they all had in common was a baseline presumption that when you vest those kinds of powers in an agent, in a fiduciary, someone to manage your affairs, they're supposed to do it themselves. That's why you picked them and not somebody else. And if you mean for them to sub-delegate that authority, you will say so in the instrument. It just doesn't make a lot of sense that you would construct an instrument that carefully identifies who's going to be exercising these powers, but if they really don't wanna do it, they can give it to somebody else. So I think the principle against sub-delegation of legislative authority is actually what we call over-determined. When is something that Congress grants to an agency giving that agency a kind and quality of discretion that crosses that line? It's no longer executive power. The agency is no longer implementing a statute. At this point, the agency is making the law, exercising legislative power. That is the difficult question. That is the question that theorists have been wrestling with for two and a quarter centuries. Discuss some of the history behind this question. Who were the first theorists or statesmen to struggle with it? The Supreme Court first addressed the Non-Delegation Doctrine back in 1825, in an opinion by Chief Justice John Marshall. It was addressed in passing, because they didn't need to deal with the issue in the case, but Marshall made some observations about that doctrine that still have a lot of relevance today. He noted the big problem is figuring out where the lines are drawn among the legislative, executive, and judicial powers. In that particular case, Congress had given the Federal Courts power to promulgate their own rules of procedure, for how to execute judgements and things like that. The question was whether that was something that needed to be specified by Congress in legislation, or whether Congress could just say to the courts, "Oh, promulgate whatever rules of procedure you'd like." And Chief Justice Marshall recognized that the issue was whether or not the power given to the courts was something they could exercise as part of the judicial power. If it was, no problem. If it wasn't, if the only constitutional box that you could put that power in was the legislative power, you would have a sub-delegation problem. And in 1825, the Supreme Court took it as given that once the boxes are drawn and you've got something in the box, no, you can't sub-delegate legislative power out of the legislative power box. In that case, Chief Justice Marshall just didn't think that the power in question was exclusively in the legislative power box. What we got in 1825 was the first clear articulation of an attempt to figure out how to draw those boxes. What makes something legislative power rather than executive or judicial? And what Chief Justice John Marshall said 200 years ago, was that if it was an important matter, Congress has to resolve it in the legislation. It could leave to executive or judicial implication matters of, there are his words, not mine, "Less interest." So distinguishing important matters, those are the legislative matters. Matters of less interest, those can be given to other actors, because filling them in is executive or judicial. Over the ensuing 200 years, nobody; no court, no scholar, not I has been able to improve on Chief Justice Marshall's formulation. People have tried. Scholars more than courts. Courts haven't really tried much in the last 200 years. There may not be an improved formulation of the non-delegation doctrine but it’s certainly been treated differently by the courts in the last hundred years. When was the inflection point on this? There were lots and lots of cases that reached the Supreme Court before 1935. All of those cases announced there was a principle against sub delegation of legislative authority. None of those cases actually articulated how you would know when that had happened. All of them found on the facts of those cases, that that hadn't happened, that whatever power Congress had given was actually executive power, didn't involve a sub delegation of legislative authority. The first time the limits were reached, was 1935. This was the new deal, the centerpiece of the new deal, was something called the National Industrial Recovery Act. To put it very crudely, the National Industrial Recovery Act made Franklin Roosevelt economic dictator of the United States. It allowed cartels of industries to draw up codes of conduct that would be legally binding on themselves, and all of their competitors. Those would be submitted to the President for approval. The President could approve them, could amend them, could scrap them, and write his own code of conduct. Those codes of conduct would function as law for all of the businesses in those industries throughout the United States. The jurisdiction under the statute extended in principle to all businesses. That's why I say it effectively made the President of the United States economic dictator. What were the criteria that the President was supposed to use in approving or writing these codes of conduct? Well there was a provision in the statute that listed all of the things that the President was supposed to be looking to. It's essentially every good, nice, wonderful thing you could possibly imagine, even when they were wildly in conflict. Promote industrial development, but beware of environmental concerns. Promote labor, but beware of costs. It's essentially an instruction to the President to promote goodness, niceness, and whatever other thing we can think of. That was too much for the Supreme Court. The Supreme Court actually found that, that statute delegated to the President some portion of the legislative power. Two aspects of that statute in two separate cases were found to violate the nondelegation doctrine. For the first time the nation's history in 1935, the Supreme Court not only announced a sub delegation principle, but enforced it. They did not, in either of those two cases, actually articulate how the lines were drawn. They just looked at this statute, and said, "Oh, come on, whatever the lines are, this is completely gone." That is the last time that the Supreme Court of the United States found that anything done by Congress was an unconstitutional sub delegation of legislative authority. What about the modern Supreme Court? Has there been any significant change in perspective on this issue? If we're thinking about the present of the nondelegation, or non-sub delegation doctrine, it is since 1935, an unbroken string of United States Supreme Court decisions saying to plaintiff's, "You lose, you lose, you lose. Not only do you lose, you lose unanimously. Not only do you lose unanimously, we're sick and tired of hearing from you." What happened after the New Deal was that Franklin Roosevelt appointed a whole bunch of new Supreme Court judges, who were much less inclined to invalidate new deal innovations. In the wake of that, in the late 1930s, early 1940s, a whole series of statutes, they didn't sweep as broadly as the National Industrial Recovery Act, but which were systematically upheld, upheld, upheld. Supreme Court's last major pronouncement on this in 1989, surveyed all of this case law over the last half-century, and essentially said, "Oh, come on, stop bringing these challenges." Right? We uphold, as constitutional statutes authorizing agencies to regulate in the public interest, to create fair and equitable arrangements. To pursue the public interest, convenience, or necessity. It was a case called United States versus Mistretta in 1989. Justice Scalia was the lone dissenter in that case, and his dissent was not that the majority was too generous to Congress, it's that they weren't generous enough, right? He really, really wanted to stop hearing these claims. One of my favorite statistics between 1989 and 2002, if you tote up all of the Supreme Court decisions, and you count the votes on non-sub delegation issues, the vote was 53 to 0 in all of those cases combined against the sub delegation challenges. Well 53-0 is pretty impressive, but what's even more impressive, is they had to cast 53 votes. There are only nine votes in each case. Think of all the cases that kept coming up, they keep saying, "Don't bring these cases, you're going to lose, don't bring these ..." Lower courts keep ruling in favor of plaintiffs, and the Supreme Court kept having to reverse them. What about the likely future? Over the last 25 years or so, the only Supreme Court Justice who has openly called for reconsideration of the doctrine since 1935, who thinks that maybe the Court should take a closer look, and find some of these open-ended statutes sub delegations, was Justice Thomas. Justice Scalia wanted nothing to do with it. justice Scalia wanted nothing to do with the nondelegation doctrine, because for Justice Scalia, the worst thing in the world was for Courts to decide cases without clear, crisp rules for decision. He couldn't think of a crisp rule for decision about when something was in the legislative box, the executive box, and judicial box. His solution was that the Courts should just stay out of it. Justice Gorsuch has replaced Justice Scalia. Justice Gorsuch, as a lower court Judge, expressed some sympathy for Justice Thomas' position. Now two is less than nine, but two is more than one. Question is whether there's anything more than two going forward? Thank you for listening to this episode of the No. 86 Lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!