Into the Multiverse: Replacing the Intelligible Principle Standard with a Modern Multi-Theory of Nondelegation

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Into the Multiverse: Replacing the Intelligible Principle Standard With a Modern Multi-Theory of Nondelegation

Cody Ray Milner*

Introduction

In October of 2018, the Supreme Court heard arguments in Gundy v. United States,1 which posed the question of whether the federal Sex Of- fender Registration & Notification Act2 (“SORNA”) violated the longstand- ing principle known as the “nondelegation doctrine.”3 Simply stated, the nondelegation doctrine is a structurally derived separation of powers doctrine, drawn from the text of the Constitution, which is used to challenge the validity of congressional delegations of legislative or rulemaking power to nonlegislative entities (primarily executive agencies).4 The

* George Mason University, Antonin Scalia Law School, J.D. Candidate, May 2021; Executive Editor, George Mason Law Review, 2020–2021; Adrian S. Fisher Award for Best Comment, 2020. My thanks to Professor Adam J. White for suggesting the theory explored here and to Professor Caroline Cecot for her encouragement and advice. Special thanks to Sarah Christensen, Ethan S. Hoffman, and Mary Barkley Horn for their invaluable input and assistance. Finally, thanks to my family for their constant love and support. 1 139 S. Ct. 2116 (2019). 2 Sex Offender Registration & Notification Act, Title I of Adam Walsh Child Protection & Safety Act of 2006, Pub. L. No. 109-248, 34 U.S.C. §§ 20901–32. Gundy focused specifically on § 20913(d), Gundy, 139 S. Ct. at 2121, which granted the Attorney General “the authority to specify the applicability of the requirements of this subchapter” and “to prescribe rules for the registration” of a class of sex offenders. See 34 U.S.C. § 20913(d). 3 Gundy, 139 S. Ct. at 2121 (plurality opinion). 4 See Jennifer L. Mascott, Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine, 26 GEO. MASON L. REV. 1, 1 (2018) (defining the nondelegation doctrine as originating from the belief that “no other branch of government, or any other federal entity, has the constitutional authority to exercise the legislative authority that the Constitution grants to Congress alone in Article I, Section 1” and so “Congress may not even consent to permitting another federal entity to exercise its exclusively held legislative power—that is, Congress may not ‘delegate’ its legislative power to another federal entity such as an executive branch actor or a federal court”); see also Raymond M. Kethledge, Hayek and the Rule of Law: Implications for Unenumerated Rights and the Ad- ministrative State, 13 N.Y.U. J.L. & LIBERTY 193, 212 (2020) (arguing that liberty is protected by strictly observing “the requirement that any particular act of coercion have the concurrence of three

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2 George Mason Law Review [Vol. 28:1 question posed in Gundy might have been resolved with minimum effort by simply looking to recent precedent—in the past eighty-five years, no statute has been found to violate the nondelegation doctrine,5 and every court of appeals to consider a nondelegation challenge to SORNA unani- mously concluded that the statute satisfied the nondelegation inquiry.6 This uniformity on this issue has arisen because the currently accepted standard for testing improper delegation—whether the delegation is accompanied by an “intelligible principle”7—has eroded over the years to a point of futility. However, rather than the predicable outcome, the eventual decision and resulting opposing opinions from Gundy took a path that deviated from this established “hands-off” approach to nondelegation and triggered a reconsideration of the nondelegation doctrine at large.8 The eight-member Court reached a majority in decision only.9 Justice Samuel Alito concurred in the judgment, writing a separate opinion to note that SORNA satisfied the nondelegation inquiry under the most current precedent, but also indicated his willingness to reconsider the Court’s

branches”); Mario Loyola, The Concurrence of Powers: On the Proper Operation of the Structural Consti- tution, 13 N.Y.U. J.L. & LIBERTY 220, 221–22 (2020) (“[T]he nondelegation doctrine . . . in theory limits the ability of Congress to delegate legislative rulemaking authority to the executive branch . . . [and] reiterates the familiar postulate from Montesquieu via James Madison, that concentrating all legislative, executive, and judicial power in the same hands is ‘the very definition of tyranny,’ and therefore Congress may not delegate its vested constitutional function to another branch.”). 5 See Gundy, 139 S. Ct. at 2120. The last case in which the Supreme Court directly used the nondelegation doctrine to invalidate a Congressional delegation occurred in 1935. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). 6 See, e.g., United States v. Cooper, 750 F.3d 263, 266–72 (3d Cir. 2014), cert. denied, 135 S. Ct. 209 (2014); United States v. Richardson, 754 F.3d 1143, 1145–46 (9th Cir. 2014) (per curiam); United States v. Nichols, 775 F.3d 1225, 1231–33 (10th Cir. 2014), rev’d on other grounds, 136 S. Ct. 1113 (2016); United States v. Sampsell, 541 F. App’x. 258, 259 (4th Cir. 2013) (per curiam) (noting that the Fourth Circuit has “consistently rejected similar non-delegation challenges in unpublished decisions”); United States v. Goodwin, 717 F.3d 511, 516–17 (7th Cir. 2013), cert. denied, 134 S. Ct. 334 (2013); United States v. Kuehl, 706 F.3d 917, 918–20 (8th Cir. 2013); United States v. Parks, 698 F.3d 1, 7–8 (1st Cir. 2012), cert. denied, 133 S. Ct. 2021 (2013); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 91–93 (2d Cir. 2010), cert. denied, 561 U.S. 1019 (2010); United States v. Whaley, 577 F.3d 254, 262–64 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212–14 (11th Cir. 2009); see also Brief for the United States in Opposition at 21, Gundy, 139 S. Ct. 2116 (No. 17-6086) (“Every court of appeals to decide such a nondelegation challenge to SORNA has rejected it—ten of them in published decisions and one in multiple unpublished decisions.”). 7 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (“If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”). 8 See generally Gary Lawson, “I’m Leavin’ It (All) Up to You”: Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine, CATO SUP. CT. REV. 31 (2018–2019). 9 Justice Brett Kavanaugh took no part in consideration or decision of this case. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 3 entire approach to nondelegation in a future case.10 Due to this lack of a controlling majority opinion, the true story of Gundy is found in Justice Neil Gorsuch’s dissent (joined by Justice Clarence Thomas and Chief Jus- tice John Roberts).11 Justice Gorsuch vigorously condemned Congress’s delegation of rulemaking authority to the Attorney General in SORNA and heavily criticized prior Courts’ decisions which eroded nondelegation into a toothless doctrine.12 The opinions from Gundy—coupled with Justice Brett Kavanaugh joining the Court—have set the stage for a radical reshaping of the nondelegation doctrine, likely to be reconsidered by the Supreme Court in the next two to three years.13 Justice Gorsuch’s dissent indicated a strong desire to reconsider the toothless intelligible principle standard.14 Chief Jus- tice Roberts and Justice Thomas joined Justice Gorsuch’s critique of the

10 See Gundy, 139 S. Ct. at 2130–31 (Alito, J., concurring) (“[S]ince 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not [currently] willing to do that, it would be freakish to single out the provision at issue here for special treatment.” (citations omitted)). 11 Justice Thomas had also previously signaled his opposition to the toothless form of current nondelegation jurisprudence. See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 487 (2001) (Thomas, J., concurring) (“On a future day [] I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”). 12 See Gundy, 139 S. Ct. at 2131 (Gorsuch, J., dissenting). 13 When this Comment was originally written, it appeared that with the confirmation of Justice Brett Kavanaugh there were five Justices willing to reconsider the nondelegation doctrine. Shortly before this Comment’s publication, the Supreme Court’s composition changed again with the confirmation of Justice Amy Coney Barrett. Although Justice Barrett did not consider any major delegation cases during her service on the Seventh Circuit Court of Appeals, she has discussed the nondelegation doctrine in some of her prior academic writing. See Amy Coney Barrett, Suspension and Delegation, 99 CORNELL L. REV. 251 (2014). Then-Professor Barrett examined the constitutional authority for Con- gress to delegate to the executive the authority to suspend habeas corpus, concluding that while “the standard ‘intelligible principle’ test does impose some limit, even if a modest one, upon the scope of [delegated powers],” sweeping delegations “likely fail even that forgiving test. . . . [since] the breadth of such legislation has the effect of resetting the constitutional baseline by statute.” Id. at 320; see also Jonathan H. Adler, Amy Coney Barrett’s “Suspension and Delegation,” REASON: VOLOKH CONSPIRACY (Oct. 18, 2020), https://perma.cc/44XE-Z5UM. This would appear to signal at least some level of skep- ticism towards sweeping delegations and the intelligible principle’s inability to strictly police such delegations, further strengthening the coalition on the Court that appears ready to reconsider the nondelegation doctrine and making the analysis in this Comment all the more relevant. 14 See Gundy, 139 S. Ct. at 2148 (“In a future case with a full panel, I remain hopeful that the Court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That ‘is delegation running riot.’” (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring))). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

4 George Mason Law Review [Vol. 28:1 failures of the intelligible principle standard in full.15 As mentioned, Justice Alito already signaled his willingness to reconsider what standard should measure improper delegations16 and in November of 2019, Justice Ka- vanaugh indicated that he would also reconsider the value and validity of the intelligible principle standard.17 Many scholars have previously formu- lated potential replacements for the intelligible principle standard, and many more are no doubt working on such tests, preparing for a changing nondelegation doctrine in the wake of Gundy. However, if the Court does choose to reconsider the current nondelegation standard, one question that remains unanswered is: why should American jurisprudence restrain itself to a single nondelegation standard to test the varied types of delegation? Since Congress delegates authority along a wide spectrum of issues, why should the Court not consider creating multiple, different nondelegation standards that correspond to the scope of authority delegated? This Comment considers these questions and proposes a new method of nondelegation inquiry: the Multi-Theory. The Multi-Theory is a two-step process that looks first to a pragmatic classification of delegation into categories (divided by the scope and origin of the power exercised by the delegee)18 and looks second to corresponding separate tests or nondelegation inquiries of varying strictness for each category.19 For example, delegation of criminal codes (traditionally a purely

15 Id. at 2131. 16 See id. (Alito, J., concurring). 17 Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., concurring in denial of certiorari) (“I write separately because Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases. Justice Gorsuch’s opinion built on views expressed by then-Justice Rehnquist . . . [who] opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch. . . . Like Justice Rehnquist’s opinion 40 years ago, Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”). 18 Commentators oscillate between using “the delegate” and “the delegee” to refer to the entity receiving and exercising the delegated authority. This Comment will use “the delegee” to reflect the lexicon used by the Court in Gundy. 19 The inspiration for this proposal is grounded in the Supreme Court’s past willingness to create jurisprudential categories or frameworks to simplify complex separation of power inquiries— chiefly, Justice Robert Jackson’s tripartite classification of executive power in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring). Justice Jackson recognized that dividing a vast and complex topic such as executive power may result in a “somewhat over-simplified grouping of practical situations.” Id. at 635. Yet Justice Jackson also recognized that implementing a system of categorization along constitutionally permissible and pragmatically relevant lines could provide invaluable assistance when making decisions on the “concrete problems of [separation of powers] as they [] present themselves.” Id. at 634. Because the “classification of executive actions into three general categories [is] analytically useful,” the Supreme Court formally adopted Justice Jackson’s concurrence in Dames & Moore v. Regan, 453 U.S. 654, 668–69 (1981). Attempts to propose “a single MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 5 legislative function) could be evaluated by a more stringent standard of nondelegation inquiry than an action such as delegation of tariff powers (traditionally viewed as already shared between Congress’s foreign commerce powers and the executive’s foreign affairs powers). In Whitman v. American Trucking Ass’ns,20 the late Justice Antonin Scalia wrote that “the degree of agency discretion [acceptable under delegated authority] varies according to the scope of the power congressionally conferred.”21 Due to the multifaceted types of power delegated by Congress to a wide variety of bodies, the Supreme Court should consider creating multiple different nondelegation evaluative standards to properly test delegation questions for each major category of potential delegated authority.22 This Comment will lay out the proposed Multi-Theory by dividing the variety of possible delegated powers into pragmatic categories along constitutionally relevant outlines of authority, then propose a range of corresponding delegation tests of varying strictness that the Supreme Court should consider when it next takes a nondelegation case. Part I of this Comment traces the historical development of the nondelegation doctrine, specifically focusing on the original development of the intelligible principle standard and the subsequent total erosion and abject failure of that standard. Part II discusses both steps of the proposed Multi-Theory— step one divides Congress’s delegable powers into three flexible categories, classified by the varying nature and scope of authority contained in each delegation,23 while step two outlines distinct standards corresponding to each category in step one for testing potential improper delegation. Fi- nally, Part III applies the Multi-Theory to recent and pending nondelegation cases, compares the Theory to other proposed corrections to the nondelegation principle, and addresses some possible criticisms.

unifying nondelegation principle broad enough to tie together the various strands of nondelegation jurisprudence while at the same time precise enough to be operationalized as a rule of a constitutional law” have proved difficult. See Loyola, supra note 4, at 222. Therefore, this Comment argues that the Supreme Court should consider developing a Youngstown-esque classification system for delegation— the Multi-Theory. 20 531 U.S. 457 (2001). 21 Id. at 475 (citations omitted). 22 See generally Orin S. Kerr, A Theory of Law, 16 GREEN BAG 2D 111 (2012). 23 The division into three categories in this Comment is not intended to indicate that any implementation of the Multi-Theory must have exactly three categories, or that any implementation need be these three particular categories. Just as Justice Jackson termed his original categorization of executive power a “rough[]” and “over-simplified grouping,” the three categories outlined here are merely intended to roughly show the type of categorization that is possible. See Youngstown, 343 U.S. at 635 (Jackson, J., concurring). Other varieties on the precise categories that could appear in the Multi- Theory can certainly exist. See infra note 258. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

6 George Mason Law Review [Vol. 28:1

I. The Rise and Fall of Nondelegation

To fully understand the collapse of the intelligible principle standard’s functionality as a working nondelegation test (and thus the crucial need for a new inquiry), this Part briefly examines the nondelegation doctrine’s theoretical foundations—tracing its development by examining early cases, its initial implementation in the early twentieth century, and its eventual weakening and corruption in subsequent nondelegation cases. This Part then briefly discusses the three primary ways that these past cases contributed to the current toothless form of nondelegation inquiry to demonstrate the need to adopt a new standard—the Multi-Theory—in order to bring life back to this doctrine of constitutional preservation.

A. Foundations of Separation of Power and Early Nondelegation Development

1. Formative Theories of Nondelegation

Nondelegation is predicated upon the text of Article 1, Section 1 of the United States Constitution: “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”24 This same founding docu- ment begins with the phrase, “[w]e the People . . . ordain and establish this Constitution.”25 Building upon that foundational premise of sovereignty in the people, the Framers proceeded to vest the various powers associated with different facets of the people’s sovereign power in distinct branches of government.26 Article I vests all legislative powers in Congress alone.27 Article II assigns the power to enforce these laws to the executive,28 and Article III recognizes independent judges with the authority of applying the laws created to individualized cases and controversies.29

24 U.S. CONST. art I, § 1; see also Whitman, 531 U.S. at 472 (associating the nondelegation doctrine with the Vesting Clause of Article I). 25 U.S. CONST. pmbl. 26 See NEIL M. GORSUCH, A REPUBLIC, IF YOU CAN KEEP IT 40–41 (2019). 27 See U.S. CONST. art. I, § 1. 28 See U.S. CONST. art. II, §§ 1, 3 (“The executive Power shall be vested in a President of the United States of America. . . . [H]e shall take Care that the Laws be faithfully executed.”); see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 12–14 (1994). 29 See U.S. CONST. art. III, §§ 1, 2 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . . The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitu- tion, the Laws of the United States, and Treaties made, or which shall be made, under their Author- ity.”); see also Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. PA. L. REV. 741 (1984). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

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At the time of the Framing, each of these three branches of government directly corresponded with a distinct function of power.30 The Fram- ers understood “legislative power” to refer to the power to promulgate generally applicable rules of conduct to the actions and lives of private individuals—in other words, the power to “prescribe[] the rules by which the duties and rights of every citizen are to be regulated,”31 or the power to “prescribe general rules for the government of society.”32 The Framers additionally believed that “the system of government ordained by the Con- stitution” would be fully frustrated if Congress could merely announce vague aspirations and then delegate to unelected bureaucrats officials the actual duties of writing rules to reach those vague goals.33 As portrayed in the Preamble and the Framers’ approach to government, the sovereign people chose to grant the power of lawmaking—and thus the power to limit the people’s inherent liberties—in Congress alone.34 No one, not even Congress, could alter that arrangement without a new, express grant of authority from the sovereign people.35 In 1825, Chief Justice John Marshall first fully described the nondelegation doctrine within a Supreme Court opinion, explaining that Con- gress may not “delegate . . . powers which are strictly and exclusively legislative.”36 While this marked the doctrine’s first appearance in a federal judiciary opinion, it was hardly the doctrine’s first appearance in the American Framers’ writings.37 The Framers drew heavily from the ideas of John Locke and Baron de Montesquieu, who both posited this theme of strict division and clear boundaries between the different powers of a national government.38 French theorist Montesquieu, positing a now-

30 See GORSUCH, supra note 26, at 39–42; see also Seila Law, L.L.C., v. CFPB, 140 S. Ct. 2183, 2212 (2020) (Thomas, J., concurring in part and dissenting in part) (“The Constitution does not vest the Federal Government with an undifferentiated ‘governmental power.’ It sets out three branches and vests a different form of power in each—legislative, executive, and judicial.” (citations omitted)). 31 THE FEDERALIST No. 78, at 472 (Alexander Hamilton) (Bantam Classic ed., 1982). 32 Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810). 33 See Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892). 34 See U.S. CONST. art I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States . . . .”). 35 See U.S. CONST. art. V (describing the amendment process). 36 Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825). 37 See, e.g., THE FEDERALIST NO. 47, at 294 (James Madison) (Bantam Classic ed., 1982) (“[T]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”). 38 See, e.g., id. (quoting Montesquieu’s maxim regarding the need for separation of powers). Com- pare THE FEDERALIST NO. 51, at 315–16 (James Madison) (Bantam Classic ed., 1982) (“[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachment of the others. . . . It may be a reflection on human nature, that such devices MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

8 George Mason Law Review [Vol. 28:1 recognizable theme of three distinct branches of government, strenuously argued against the legislative branch delegating its power away.39 Montes- quieu noted that when multiple powers are “united in the same person . . . there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”40 English theorist Locke argued that if lawmaking authority ever devolved and ended up in the hands of a body not elected by the people, the original depository of those powers (the legislature) could never be held accountable for the good or bad laws that were subsequently created.41 Locke described the position in further detail: The legislat[ure] cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. . . . And when the people have said, we will submit to rules and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them.42 If such reckless laws made by a subsequent, nonlegislative rule-maker were opposed by the public, the legislature could simply duck the blame, avoid accountability, and never face the true consequences of the poor laws that were made. Locke believed that allowing delegated rulemaking authority would undermine the legislature’s function as duly elected representatives of the people, and thus destroy whatever accountability the people held over their representatives.43 The Framers were heavily influ- enced by this approach to governance—reflected in the original nondelegation doctrine and the clear structural separation of powers in the United States Constitution—as a mechanism to defend against a breakdown of legislative accountability.44

should be necessary to controul the abuses of government.”) with JOHN LOCKE, TWO TREATISES OF GOVERNMENT 194 (Thomas Cook ed., Hafner Press 1947) (“[I]t may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them . . . .”). 39 See BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 182, 217 (Thomas Nugent, trans., D. Appleton & Co. 1900) (1748). 40 Id. at 182. 41 See LOCKE, supra note 38, at 188, 193. 42 Id. at 193. 43 See id. 44 See generally THE FEDERALIST NO. 47 (James Madison). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

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2. Early Delegations and Conditional Legislation (Executive-Fact- Finding

Though the doctrinal name was coined much later, the Supreme Court’s first attempt at grappling with nondelegation occurred in the 1813 case, Cargo of the Brig Aurora v. United States.45 Due to escalating hos- tilities between America and European nations (and following the lapse of the 1809 Non-Intercourse Act), Congress again chose to restrict trade with both Great Britain and France and subsequently approved a new version of the Act in 1811.46 This Act gave the President the authority and full discretion to lift the trade embargos against either hostile nation if he found that the relevant country no longer violated the trading rights of the United States.47 The Act was immediately challenged on the constitutional grounds that it gave the President legislative authority that had been reserved for Congress, but the Supreme Court determined that this manner of delegating powers to the President was permissible.48 Here, it was Con- gress, not the President, who created the substantive law and established the parameters by which conduct was regulated.49 Under this law, the President’s sole role was to evaluate the real-world conditions and make a factual determination regarding when and where the broader laws should apply.50 This type of appropriate delegated authority became known as “conditional legislation,” and was the first standard under which nondelegation was measured.51

While this first caveat regarding authority delegated from Congress to the President seemed to violate Locke and Montesquieu’s fundamental position, conditional legislation perfectly maintained the ideal of keeping accountability in the hands of Congress and maintaining a clear separation of powers between Congress and the executive.52 Several decades later, the Supreme Court further addressed the parameters of conditional legislation as a means of congressional delegation in Marshall Field & Co. v. Clark.53 Congress enacted and President Harrison signed into law the

45 11 U.S. 382 (1813). 46 Id. at 388–89. 47 Law of March 2, 1811, ch. 96, § 2, in 10 THE LAWS OF THE UNITED STATES OF AMERICA 347 (1811). 48 See Cargo of the Brig Aurora, 11 U.S. at 386. 49 See id. at 388. 50 See id. 51 This standard would also be referred to as the “named contingency” test. 52 See Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1247 (2015) (Thomas, J., concurring). 53 See 143 U.S. 649 (1892). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

10 George Mason Law Review [Vol. 28:1

Tariff Act of 1890 (more commonly known as the McKinley Tariff), part of which was a provision where Congress granted the executive the power to suspend the Act and block the free importation of foreign goods.54 To unlock this substantial power over international commerce, Congress required only that the President reach a finding that the offending foreign country had imposed “reciprocally unequal and unreasonable” duties on American products.55 The Act was immediately challenged as an unconstitutional delegation of Congress’s power (among other challenges).56 However, the Court concluded that the Act—like that in Cargo of the Brig Aurora—constituted an acceptable delegation of de minimis congressional authority to the President.57 Writing on behalf of the Court, Justice John Harlan noted: The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.58 Justice Harlan continued to state that “[l]egislative power was exercised when Congress declared that the suspension should take effect upon a named contingency,”59 and that the President “was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.”60 This holding—followed by Justice Har- lan’s examination into what comprises a constitutional and appropriate legislative delegation—established (at that time) that Congress may only delegate authority to the executive if the delegated authority takes the form of conditional legislation. While some might argue that the Field Court slightly expanded conditional legislation (or executive fact-finding) beyond the original intent of the Cargo of the Brig Aurora Court, Field still demarcated clear boundaries on permissible congressional delegations of pure legislative rulemaking power to the executive. Nevertheless, by the twentieth century, the structural composition of the federal government underwent significant changes. An entire shift in constitutional approach occurred, beginning with the Interstate Commerce Act of 1887 and accelerating during the rise of the administrative state (born from President Franklin Roosevelt’s New

54 Id. at 680–81. 55 Id. at 680. 56 Id. at 656. 57 Id. at 693–94. 58 Id (quoting Cincinnati, Wilmington & Zanesville R.R. v. Comm’rs of Clinton Cnty., 1 Ohio St. 77, 88–89 (Ohio 1852)). 59 Field, 143 U.S. at 693. 60 Id. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

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Deal).61 Under the guise of allowing expertise to guide the promulgation of rules, Congress began delegating more authority to the new agencies and commissions that were governed by the executive, clearing the path for the Supreme Court to move away from the conditional-legislation test and broaden the standard by which it measured congressional delegation.62

B. Birth and Death of the Intelligible Principle

1. Creation of the Intelligible Principle Standard

The break from the conditional legislation standard and the subsequent creation of the intelligible principle standard occurred in the case J.W. Hampton, Jr., & Co. v. United States,63 ushering in a new age of congressional abdication and delegated powers. J.W. Hampton involved a challenge to the “flexible tariff provision” within the Ford–McCumber Tariff Act of 1922.64 This statute gave the President the power to fix the rates and prices of various goods if he determined that the current rates failed to capture the full difference in the cost of production from the United States to foreign countries.65 To assist the President in making that determination, Congress established four distinct metrics for the President to examine.66 The statute also required the federal Tariff Commission (later re- named the International Trade Commission) to investigate the industry before any executive rules were issued under the delegated authority.67 J.W. Hampton, Jr., & Co. immediately challenged this provision, arguing that under the traditional standards of nondelegation, this disburse- ment marked an unconstitutional delegation of legislative power to the President.68 However, the Supreme Court, in a unanimous decision, found this “flexible” delegation of tariff powers to be an acceptable delegation of congressional authority.69 Writing for the Court, Chief Justice William Howard Taft noted that Congress laid out both a specific policy and clear metrics by which to gauge that policy; the President’s sole discretionary

61 Meaghan Dunigan, The Intelligible Principle: How It Briefly Lived, Why It Died, and Why It Des- perately Needs Revival in Today’s Administrative State, 91 ST. JOHN’S L. REV. 247, 254 (2017). 62 Id. 63 276 U.S. 394 (1928). 64 Id. at 400. 65 Id. at 401. 66 Id. at 401–02. 67 Id. at 402. 68 Id. at 404. 69 J.W. Hampton, 276 U.S. at 410–11. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

12 George Mason Law Review [Vol. 28:1 role was to determine the exigent differences in rates to ascertain which rates did not comply with Congress’s underlying policy and plan.70 The Court did not consider such a limited role to be any true exercise of Con- gress’s rulemaking power.71 The Court instead termed the President’s role as simply a means “to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution.”72 Chief Justice Taft concluded that “[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized [to act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”73 Under Chief Justice Taft’s holding, this new intelligible principle standard required Congress to clearly articulate a “policy and plan,” and further allowed Congress to grant the executive the authority to execute that plan only after a full investigation into various metrics.74 Theoreti- cally, this new standard seemed to correspond with conditional legislation since it only empowered the executive to implement a plan already established by Congress. However, in reality, this new standard permitted Con- gress to extend delegation much further than before and delegate what had previously been considered purely legislative power.75 Unlike the standard emanating from Field (where the President only determined whether certain other goods should carry rates in addition to those already set by Congress—executive fact-finding), in J.W. Hampton, the Pres- ident was both determining which current rates were unequal and exercising the sua sponte authority to ‘fix’ the rates.76 While Chief Justice Taft argued that the President was merely enforcing the existing statute, his opinion continued further to also state, “[i]f Congress were to be required to fix every rate, it would be impossible to exercise the power at all.”77 Chief Justice Taft suggested a pragmatic approach to delegation under which the Court implicitly acquiesced in Congress’s delegation of authority to the President and used the new intelligible principle standard as a means “to ensure [the] [] delegation was not too excessive.”78 In the decade immediately following the J.W. Hampton revolution, the Supreme Court decided two more important nondelegation cases,

70 Id. at 404–05. 71 Id. at 409. 72 Id. at 406. 73 Id. at 409 (emphasis added). 74 Id. at 405. 75 See J.W. Hampton, 276 U.S. at 409. 76 See Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 367–68 (2002). 77 J.W. Hampton, 276 U.S. at 407. 78 Dunigan, supra note 61, at 256. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 13 through which it both conclusively established the “intelligible principle” as the new test by which to measure congressional delegation and further defined the standard’s limits. The first case was Panama Refining Co. v. Ryan.79 In Panama Refining, the Court struck down part of one of the titles of the National Industry Recovery Act (“Recovery Act”)—a multipurpose act under which Congress granted the President power to regulate the economy.80 The provision at issue prohibited the interstate transportation of petroleum and related products.81 In its opinion, the Court pointed to three separate criteria to be evaluated when analyzing a challenge to a delegation the legislature’s power: (1) “whether the Congress has declared a policy with respect to that subject”; (2) “whether the Congress has set up a standard for the President’s action”; and (3) “whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.”82 Here, the Court found that the Recovery Act failed to meet any of the three criteria, rendering the delegation clearly unconstitutional.83 In its analysis, the Court first found that—rather than laying out a clearly articulable policy—Congress granted the President “unlimited authority to determine the policy [of petroleum transportation regulations] and to lay down the prohibition, or not to lay it down, as he may see fit.”84 Next, the Court concluded that the statute “establishes no criterion to govern the President’s course.”85 And third, the Court concluded that the statute did “not require any finding by the President as a condition of his action” (referring back to the conditional legislation standard).86 As a result, the Court struck down the provision as an unconstitutional attempt to delegate legislative authority.87 This three-part standard (although not explicitly stated by the Court as a distinctly three-part standard) provided the first meaningful parameters that reined in the intelligible principle standard beyond Chief Justice Taft’s vague articulation in J.W. Hampton.88 Under the Panama Refining Co. conception, Congress may not merely set forth a broad policy or generic

79 293 U.S. 388 (1935). 80 Id. at 409, 433. 81 Id. at 405. 82 Id. at 415. 83 Id. 84 Id. 85 Panama Refining, 293 U.S. at 415. 86 Id. 87 Id. at 433; see also Evan J. Criddle, When Delegation Begets Domination: Due Process of Admin- istrative Lawmaking, 46 GA. L. REV. 117, 138–39 (2011). 88 See Martin Edwards, Who’s Exercising What Power: Toward A Judicially-Manageable Nondelega- tion Doctrine, 68 ADMIN. L. REV. 61, 70–71 (2016). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

14 George Mason Law Review [Vol. 28:1 plan to which the President’s actions need conform—it must also provide directions for a certain condition that must exist before the President acts. The practical effect of binding this restrained conditional legislation met- ric into the intelligible principle standard significantly “strengthened the constitutionality of the standard” by ensuring that the President bowed to the policy directives of Congress rather than creating his own laws on a whim.89 Thus the new three-part approach of applying the intelligible principle standard promoted both the classic separation of powers as well as Congress’s basic accountability to the American people.90 Just a few short months after the Panama Refining Co. decision, the Court proceeded to strike down a second provision of the Recovery Act in A.L.A. Schechter Poultry Corp. v. United States.91 The challenged section in this case had authorized the President to both create and approve codes of “fair competition” to regulate trade and industry associations, after making a determination that the proposed industry codes “impose[d] no inequitable restrictions on admission to membership and [we]re truly rep- resentative.”92 Furthermore, the statutory language permitted the Presi- dent to craft any conditions “deem[ed] necessary to effectuate the policy herein declared.”93 In this second nondelegation case of the term, the Court held that this provision of the Act was also an impermissible delegation of legislative authority—here, because “the discretion of the Presi- dent in approving or prescribing codes . . . [wa]s virtually unfettered.”94 Although the statute facially appeared to comply with the conditional-legislation test (by requiring the President to make vague findings about the necessity of the codes before creating and enforcing them), the Court found that the statute “supplie[d] no standards”95 and the vague restrictions left “virtually untouched the field of policy” envisioned by the underlying statute, rendering the President’s fact-finding requirement “really but a statement of an opinion.”96 Curiously, the Court refrained from directly addressing the intelligible principle standard when it struck down the offending provision in A.L.A. Schechter Poultry. Instead, the Court compared the statutory tariff language at issue in J.W. Hampton with the Recovery Act language in A.L.A. Schechter Poultry, examining the clear limitations on the delegated power

89 See Dunigan, supra note 61, at 257; see also Neomi Rao, Administrative Collusion: How Delega- tion Diminishes the Collective Congress, 90 N.Y.U. L. REV. 1463, 1501 (2015). 90 See Rao, supra note 89, at 1502. 91 295 U.S. 495, 551 (1935). 92 Id. at 521–22, 538. 93 Id. at 523. 94 Id. at 542. 95 Id. at 541. 96 Id. at 538. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 15 present in the J.W. Hampton statute, while noting that the language in A.L.A. Schechter Poultry supplied absolutely no standards to guide the Pres- ident’s “legislative undertaking.”97 Drawing on both J.W. Hampton and Panama Refining Co., the Court proceeded to provide further guidance on what it must weigh when determining whether the delegation of legislative power has gone too far.98 Following its opinion in Panama Refining Co., the Court referenced the older conditional legislation standard, noting that the President’s ability to create or approve codes could only occur upon an executive determination that the codes were fair.99 However, this particular flavor of conditional legislation ran afoul of the Court’s test, since the President did not actually make any type of factual determination and instead only made a discretionary finding, rendering the term “fair” without any measurable parameters.100 The Court concluded by directing Congress to articulate clearer standards under which the President might exercise the delegated authority.101 It further held that the delegation of any legislative power beyond the particular policy goals underlying the Act was impermissible under the nondelegation doctrine.102 As the only two cases directly repudiating congressional statutes for exceeding the bounds of delegation according to the intelligible principle standard, Panama Refining Co. and A.L.A. Schechter Poultry offer significant insight into the nuances of the intelligible principle standard as originally imagined.103 Unfortunately, this line of argument failed to carry much weight beyond 1935. In the years since, the Court has continually changed and broadened the meaning of “intelligible principle” into a meaningless standard that permits far more delegation of legislative authority than was originally defined in J.W. Hampton, Panama Refining Co., and A.L.A. Schechter Poultry.104

2. Breakdown of the Intelligible Principle

Economic turbulence and shifting politics signaled the breakdown of the intelligible principle standard. When J.W. Hampton was decided, the United States hovered a mere eighteen months from the Stock Market Crash of 1929, which carried with it the beginning of the Great Depression

97 A.L.A. Schechter Poultry, 295 U.S. at 541–42. 98 See id. at 537–38. 99 See id. at 538–39. 100 See id. 101 See id. at 534–35. 102 See id. 103 See Gundy v. United States, 139 S. Ct. 2116, 2137–39 (2019) (Gorsuch, J., dissenting). 104 See id. at 2138–39; see also Lawson, supra note 76, at 371. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

16 George Mason Law Review [Vol. 28:1 and culminated in President Roosevelt’s revolutionary New Deal.105 These events massively altered the government’s role in regulating society (leading some scholars to call the era a constitutional refounding)106 and ex- plain in part why the intelligible principle standard failed to last as a functioning, enforceable test for the nondelegation doctrine.107 The most impactful change to the American system of government during the New Deal was the growth of administrative agencies, organized under the purview of the executive.108 Administrative agencies were authorized to undertake both policy and lawmaking roles that had traditionally been reserved for the legislature, ideally adding an additional layer of bureaucracy between Congress and the executive, between the statute- enactor and the statute-enforcer.109 While purported to advance government efficiency, this new, additional branch of government undermined one of the key tenants of the nondelegation doctrine: maintaining political and democratic accountability.110 Nevertheless, despite the serious threat that the growth of the administrative state posed to both the nondelegation doctrine and its underlying rationale, neither Congress nor the Supreme Court attempted to uphold the doctrine or maintain the first conception of the intelligible principle.111 Rather, Congress chose to instead delegate away unprecedented amounts of legislative power to the new administrative agencies, and the Court chose to uphold these questionable delegations by adopting a toothlessly broad version of the intelligible principle.112 Over the following

105 J.W. Hampton was decided on April 9, 1928, and the Stock Market Crash of 1929 occurred on October 4, 1929. 106 See generally Michael W. McConnell, The Forgotten Constitutional Moment, 11 CONST. COMMENT. 115 (1994). 107 See Dunigan, supra note 61, at 260–70. 108 See David Casazza, Liberty Requires Accountability: Checking Delegations to Independent Agen- cies, 38 HARV. J.L. & PUB. POL’Y 729, 737 n.43 (2015). 109 See Seila Law, L.L.C., v. CFPB, 140 S. Ct. 2183, 2216 (2020) (Thomas, J., concurring in part and dissenting in part) (calling the general growth in administrative independence “just another example of this Court departing from the strictures of the Constitution for a ‘more pragmatic, flexible approach’ to our government’s design” (quoting Perez v. Mortg. Bankers Ass’n., 575 U.S. 92, 116 (2015) (Thomas, J., concurring in judgment))). 110 Casazza, supra note 108, at 730, 742, 746 (“The commitment to nondelegation proceeds from the people’s decision to place political power in the legislature. . . . When Congress delegates its poli- cymaking power to an agency, the power of making laws passes out of the hands of those to whom the people have entrusted it.”). 111 See generally Loyola, supra note 4, at 236. 112 In some cases, the Court does not explicitly cite to the intelligible principle when discussing nondelegation yet clearly relies on the underlying nondelegation principle to arrive at its conclusion on whether there was a permissible delegation. See, e.g., Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218–19 (1989) (relying on Mistretta v. United States, 488 U.S. 361 (1989) and American Power & MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 17 decades, the Court took three particular steps that shattered the original conception of the intelligible principle. First, the Court retreated from its role as umpire, and instead equivo- catingly upheld the vague policy statements and unlimited delegated authority present in subsequent cases.113 Second, the Court failed to accu- rately state the intelligible principle in Mistretta v. United States,114 thus reviving the test in a form radically different and severely less strict than its original meaning. Third, the Court abandoned the early requirement of conditional legislation as part of the intelligible principle standard.115 The resulting parade of nondelegation cases deviating further from the original nondelegation doctrine illustrates how, after a short spurt of nondelegation enforcement in the 1930s, the Court turned a blind eye to the intelligible principle. This acquiescence permitted the eventual breakdown of the intelligible principle as any sort of relevant or useful standard to check improper delegation. The Supreme Court’s initial backtrack from the intelligible principle’s original rigor occurred less than a decade after the pro-nondelegation decision in A.L.A. Schechter Poultry. In National Broadcasting Co. v. United States,116 the Court took a case that questioned the authority Congress had delegated to the Communications Commission under the Communica- tions Act of 1934. Under the statute, the Communications Commission exercised the authority to create and adopt whatever regulations for radio broadcasting “as may be necessary to carry out the provisions of th[e] Act”117—in particular, regulations that were in the “public interest, convenience, or necessity.”118 Deviating from its prior holdings, the Court concluded that the relevant “public interest” policy objective language was “a criterion which ‘is as concrete as the complicated factors for judgment in such a field of delegated authority permit.’”119 The resulting “public

Light Co. v. SEC, 329 U.S. 90 (1946) to describe the applicability of the nondelegation doctrine); Lujan v. Defenders of Wildlife, 504 U.S. 555, 604 (1992) (Blackmun, J., dissenting) (referencing Touby v. United States, 500 U.S. 160 (1991) and Am. Power, 329 U.S. at 105 when discussing the Court upholding delegations under broad terms). 113 See, e.g., Am. Power, 329 U.S. at 104–06; Yakus v. United States, 321 U.S. 414, 426–27 (1944); Nat’l Broad. Co. v. United States, 319 U.S. 190, 217 (1943). 114 488 U.S. 361 (1989). 115 See Dunigan, supra note 61, at 269 (“Since A.L.A. Schechter Poultry, there has been no call by the Court in nondelegation cases for agencies to satisfy some prerequisite before they can begin promulgating rules. Instead, the Court has allowed Congress to delegate purely legislative authority to agencies without first requiring that the agencies make some type of factual determination.”). 116 319 U.S. 190 (1943). 117 Id. at 217. 118 Id. at 193–94. 119 Id. at 216 (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 138 (1940)). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

18 George Mason Law Review [Vol. 28:1 interest” standard, though patently ambiguous and vague enough to be applied to nearly anything, would be subsequently upheld in various cases as a sufficient intelligible principle from Congress to the agencies.120 The next step, taken during World War II, saw the Court uphold the Emergency Price Control Act in Yakus v. United States.121 The Act created the Office of Price Administration, which was to be run by the Price Ad- ministrator (an executive appointee).122 The Act further stated that the Price Administrator was authorized to establish “fair and equitable” prices, reflecting Congress’s intention to stabilize industry prices as part of the home-front war response.123 The Court, examining the relevant statutory language, concluded the delegation was a permissible handoff of legislative authority since Congress had “stated the legislative objective, [and] prescribed the method of achieving that objective—maximum price fixing—, and [] laid down standards to guide the administrative determination of both the occasions for the exercise of the price-fixing power, and the particular prices to be established.”124 While the directive to stabilize wartime prices was a substantially narrower guiding policy than the vague “public interest” standard, the Price Administrator exercised much broader discretion in how to reach that goal. Furthermore, authorization to establish “fair and equitable” prices is strikingly similar to creating “codes of fair competition”—the statutory language struck down in A.L.A. Schechter Poultry for being too discretionary and therefore an unconstitutional delegation of rulemaking authority. This diametrically contradictory result in Yakus further demonstrates the speed with which the Court was moving away from its prior conception of the intelligible principle, instead permitting Congress to delegate more and more power to administrative agencies.125 The next deviation towards unrestrained congressional delegation appeared in the case American Power & Light Co. v. SEC.126 In 1935, Con- gress passed and President Roosevelt signed into law the Public Utility Holding Company Act, authorizing the Securities and Exchange Commis- sion (“SEC”) to take the necessary steps to ensure that the public holding

120 See, e.g., Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 611 (1944) (permitting delegation to fix “just and reasonable rates” for gas prices that were “consistent with the maintenance of adequate service in the public interest”); Pottsville, 309 U.S. at 137–38 (permitting a delegation to create a regulatory system granting or denying licenses based on “public convenience, interest or necessity”). 121 321 U.S. 414 (1944). 122 Id. at 419. 123 Id. at 420. 124 Id. at 423. 125 See James R. Conde & Michael S. Greve, Yakus and the Administrative State, 42 HARV. J.L. & PUB. POL’Y 807, 866–69 (2019). 126 329 U.S. 90 (1946). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 19 companies did not “‘unduly or unnecessarily complicate the structure’ [of such companies,] or ‘unfairly or inequitably distribute voting power among security holders.’”127 These guiding phrases were challenged as unconstitutional delegations on the grounds that the phrases were undefin- able and had no clear meaning.128 However, the Court concluded that the relevant phrases constituted sufficiently intelligible delegations.129 In doing so, the Court presented what seemed to become its newest interpretation of the intelligible principle. The Court again deviated further from the prior standards, stating that delegations of legislative authority were permissible so long as Congress laid out: (1) a “general policy”; (2) “the public agency which is to apply” the policy; and (3) “the boundaries of this delegated authority.”130 Following its decision in Yakus, the Court here concluded that the statutory language “unfair[] and inequitabl[e]” presented sufficiently clear boundaries under which the SEC might regulate holding companies.131 Here, the Court justified the permissible breadth of such ambiguous terms by noting that the words “reflect[] . . . the necessities of modern legislation dealing with complex economic and soci[etal] problems.”132 This holding appears to show that the Court fully recognized its deviation from its original conception of the intelligible principle standard, which would continue to have a significant impact on the nondelegation doctrine’s evolution.

3. Death of the Intelligible Principle

The Court’s decisions in National Broadcasting Co., Yakus, and Ameri- can Power & Light Co. ravaged the intelligible principle so that the standard was stripped of all meaning—a mere decade after the phrase was coined. In subsequent cases, courts rarely even cited the intelligible principle standard as a consideration before proceeding to uphold broad swathes of delegated authority, and the few that did mention the standard cited to the inverted application from American Power & Light Co. when determining whether the delegation was appropriate.133 Although it is far from clear

127 Id. at 104. 128 Id. 129 Id. at 105. 130 Id. 131 Id. at 97, 105. 132 Am. Power, 329 U.S. at 105. 133 See, e.g., Loving v. United States, 517 U.S. 748, 771 (1996) (relying on National Broadcasting for a standard while admitting that the Court has previously upheld “delegations under standards phrased in sweeping terms”); Bowsher v. Synar, 478 U.S. 714, 720 (1986) (using Yakus as a standard); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685–86 (1980) (Rehnquist, J., concurring) (relying on American Power and its broad policy objectives); Fed. Energy Admin. v. Algonquin MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

20 George Mason Law Review [Vol. 28:1 that the Supreme Court in J.W. Hampton demanded Congress present a specific “policy and plan,” the same Court’s reliance on the intelligible principle to dismiss the congressional delegations in Panama Refining Co. and A.L.A. Schechter Poultry as too discretionary illustrates that the original intelligible principle did require some specificity. The Court’s authorization of broad policy objectives relating to limitless agency power as a sufficiently intelligible principle comprised a major contribution to the breakdown of the intelligible principle in three primary ways. First, the Court determined that the vague phrase “public interest” comprised a sufficiently concrete policy objective to guide an agency’s ac- tivities.134 How the Court repeatedly managed to reach such a conclusion was a point that puzzled the late Justice Scalia, who, in his scathing dissent in Mistretta, asked: “What legislated standard, one must wonder, can possibly be too vague to survive judicial scrutiny, when we have repeatedly upheld, in various contexts, a ‘public interest’ standard?”135 The standard thus gave Congress carte blanche to give administrative agencies power to create whatever rules they deem necessary for the public; the agency solely relies on its own political agenda rather than the barest requirements of objective guidelines from Congress itself. The real problem with upholding such broad policy objectives as appropriate delegation was the manner by which the Court attempted to justify its ever-eroding decisions. The Court has defended its approval of broad statutory language such as “public interest,” “just and reasonable rates,” “unfair methods of competition,” or “relevant factors” by showing that these broad phrases might be consistent with the original conception of the intelligible principle as a limited standard of nondelegation.136 Ra- ther, the Court chose (and continues to choose) to simply state that, since similarly broad, vague phrases have been upheld in past cases, whatever authority is now delegated under new broad phrases should equally survive nondelegation challenges.137 Furthermore, the Court now generally attempts to justify such broad standards by blaming the state of American government, namely, the

SNG, Inc., 426 U.S. 548, 560 (1976); Lichter v. United States, 334 U.S. 742, 785 (1948) (citing American Power). 134 See, e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 216 (1943). 135 Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting). 136 See Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (plurality opinion). 137 Loving, 517 U.S. at 771 (“[W]e have since upheld, without exception, delegations under standards phrased in sweeping terms.”); Mistretta, 488 U.S. at 374 (majority opinion) (“In light of our approval of these broad delegations, we harbor no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements.”). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 21 unchecked growth of the administrative state.138 While this may be a valid point in favor of giving administrative agencies further legislative authority, it does not and cannot justify the blatant derogation of nondelegation principles that the Court has permitted under the intelligible principle standard. A fairly strong opposing argument could easily be made that the unchecked growth of the modern administrative state is a direct result of the Supreme Court’s refusal to apply the intelligible principle standard to uphold nondelegation.139 This refusal allowed, and perhaps encouraged, Congress to create more agencies upon which it then delegated its duties and thus avoided political accountability. Therefore, the Court’s conscious decision to uphold these statements of broad policy significantly contributed to the erosion of the intelligible principle by permitting agencies to operate with far too much discretion and repudiate the original parameters of the intelligible principle. Second, the Court facilitated the destruction of the intelligible principle by adopting the three elements outlined in American Power as the relevant test for the intelligible principle standard in Mistretta.140 In Mis- tretta, the Court grappled with whether Congress delegated too much power to the federal Sentencing Commission when it authorized that agency to promulgate new sentencing guidelines.141 In the organic statute, “Congress charged the [Sentencing] Commission with three goals . . . [and] specified four ‘purposes’ of sentencing that the Commission must pursue in carrying out its mandate,” and further “prescribed the specific tool— the guidelines system—for the Commission to use in regulating sentencing.”142 The Court concluded that these particular policy objectives and standards of testing articulated by the statute satisfied the intelligible principle standard.143 Quoting its prior decision in American Power & Light Co. to further elucidate its understanding of the requirements under the

138 See, e.g., Mistretta, 488 U.S. at 372 (“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”); United States v. Robel, 389 U.S. 258, 274 (1967) ( “Delegation of power under general directives is an inevitable consequence of our complex society, with its myriad, ever changing, highly technical problems.”); Opp Cotton Mills, Inc. v. Adm’r of Wage & Hour Div. of Dep’t of Labor, 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy.”). 139 See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. PA. L. REV. 379, 380 (2017). 140 Mistretta, 488 U.S. at 372–73. 141 Id. at 374. 142 Id. 143 Id. at 371–79. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

22 George Mason Law Review [Vol. 28:1 nondelegation doctrine, the Court argued that it is “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”144 After Mistretta, the Court continued its march to uphold blanket congressional delegations to administrative agencies under the broad terms of the American Power decision. In Touby v. United States,145 the Court examined a statute authorizing the Attorney General to classify various drugs as controlled substances in pursuit of criminal drug enforcement policy if such classifications were “necessary to avoid an imminent hazard to the public safety.”146 The Court upheld this guiding statement as consistent with the intelligible principle, mainly by referring to the Court’s recent history of upholding ambiguous delegations of power to establish “fair and equitable” prices or rules in the “public interest.”147 The Court concluded by saying, “[i]n light of these precedents, one cannot plausibly argue that [the statute]’s ‘imminent hazard to the public safety’ standard is not an intelligible principle.”148 A decade later, the Court decided Whitman v. American Trucking Ass’ns, furthering yet again the Court’s perpetual departure from vigorously enforcing basic nondelegation principles.149 The statute at issue in Whitman was a provision of the Clean Air Act, under which the Environ- mental Protection Agency (“EPA”) was authorized to promulgate air quality standards at a level “requisite to protect the public health.”150 Although this phrase alone, in another context, might have provided sufficiently clear direction to the EPA, in Whitman, the phrase was obscured and mud- dled when taken together with the additional requirement that the EPA not consider any policies’ costs.151 Below, the D.C. Circuit had ruled that the provision was an unconstitutional delegation of authority because the counterintuitive ambiguity in the organic statute failed to set forth

144 Id. at 372–73 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). Justice Scalia, however, criticized the Court’s heavy reliance on the public interest standard as a sufficient policy objective. Id. at 416 (Scalia, J., dissenting). 145 500 U.S. 160 (1991). 146 Id. at 162–63. 147 Id. at 165 (first quoting Yakus v. United States, 321 U.S. 414, 426–27 (1944), and then quoting Nat’l Broad. Co. v. United States, 319 U.S. 190, 225–26 (1943)). 148 Id. at 165. 149 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001). 150 Id. at 465 (analyzing the instruction for the EPA to “set primary ambient air quality standards ‘the attainment and maintenance of which . . . are requisite to protect the public health’ with ‘an adequate margin of safety’” (quoting 42 U.S.C. § 7409(b)(1))). 151 See id. at 464 (noting that Lead Industries established that “economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109” of the Clean Air Act (quoting Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130, 1148 (D.C. Cir. 1980))). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 23 enough of an intelligible principle to guide the agency.152 However, the Supreme Court reversed in an opinion written by Justice Scalia, concluding that the term “requisite” meant “sufficient, but not more than necessary,” and holding that the scope of delegated discretion was constitutionally permissible under the precedent of the extremely broad nondelegation guidelines the Court had already upheld.153 The case also marked the first time Justice Thomas introduced his concerns on whether the failing intelligible principle remained a viable approach to measuring congressional delegation.154 The Court’s decision to redefine the intelligible principle in Mistretta using the elements laid out in American Power & Light Co. remains one of the most significant culprits contributing to the continued erosion of the intelligible principle, primarily by eviscerating the original intention and application of the intelligible principle standard developed by J.W. Hamp- ton, Panama Refining Co., and A.L.A. Schechter Poultry. By jettisoning the requirement of specific policy goals and permitting vague, general policy statements to satisfy the intelligible principle standard, the Court granted administrative agencies the power to define the “purpose” of the delegating statutes (and thus the scope of their own authority). Additionally, while the third prong from American Power required Congress to clearly define the scope and boundaries of delegated authority, the subsequent decisions following Mistretta illustrated that Congress need not state any quantifiable boundaries to survive the Court’s review.155 In Touby and Whitman, respectively, the Court upheld the terms “necessary” and “requisite”—without any further context or direction—as sufficient limits on

152 See id. at 472. The D.C. Court of Appeals had held that the statute “failed to state intelligibly how much [pollution] is too much.” Am. Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999), modified, 195 F.3d 4 (D.C. Cir. 1999). In the modified opinion, the D.C. Court of Appeals attempted to remedy the issue by stating that if the agency itself provided enough of an intelligible principle, that could make up for the failure of the organic statute. 195 F.3d at 7–8. This position was also rejected by the Supreme Court. See Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78 NOTRE DAME L. REV 1075, 1134 (2003) (“As Whitman concisely explained, it is a self-contradiction to suggest that an enforcement official could legislate a cure to a violation of the nondelegation doctrine, which forbids such officials—whether judicial or executive—from legislat- ing.”). 153 Whitman, 531 U.S. at 472–75. 154 See id. at 487 (Thomas, J., concurring) (“I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. . . . On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”). 155 See id; see also Touby v. United States, 500 U.S. 160, 164–67 (1991). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

24 George Mason Law Review [Vol. 28:1 delegated authority, even though both are extremely discretionary terms that fail to give executive agencies any true policy guidance.156 Furthermore, the new definition of the intelligible principle in Mis- tretta happened just four years after the Court adopted its statutory-interpretation policy of Chevron deference to administrative agencies.157 The Chevron doctrine can be succinctly stated as judicial deference to interpretations proposed by administrative agencies when Congress has been silent or ambiguous in a statute which the agency enforces or from which the agency draws authority.158 Whenever such ambiguity occurs, courts must defer to an agency’s interpretation of the organic statute so long as that interpretation is reasonable.159 However, the application of this Chev- ron deference arguably permits administrative agencies to radically change the policy goals articulated by Congress.160 When the agency’s ability to reinterpret the ambiguous words of policy guidelines is combined with Mistretta’s toothless restatement of the intelligible principle, the Court hands agencies the uncheckable power to sua sponte grant themselves tremendous authority to create rules and promulgate laws. This un- desirable synergy eliminates Congress’s political accountability and

156 In both of these cases, the choice of word is not the fatal flaw that permits too broad of delegation—with the appropriate context, either “necessary” or “requisite” can be coupled with further guidance that sufficiently demonstrates Congress’s policy decision in order to establish a limiting principle to the delegation. However, “necessary” cannot be an intelligible principle when Congress has not indicated what is necessary—“requisite” cannot be an intelligible principle when Congress has not clarified how to measure what is requisite. See Touby, 500 U.S. at 166–67; Whitman, 531 U.S. at 472. 157 See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (creating a two-step analysis of an agency’s interpretation of an ambiguous statute: (1) determine whether a statute is ambiguous, and (2) determine whether the agency’s interpretation of that statute is reasonable). 158 See Kent Barnett, Christina L. Boyd & Christopher J. Walker, Administrative Law’s Political Dy- namics, 71 VAND. L. REV. 1463, 1465 (2018); Evan J. Criddle, Chevron’s Consensus, 88 B.U. L. REV. 1271, 1278–79 (2008). 159 See City of Arlington v. FCC, 569 U.S. 290, 296–97 (2013) (“[A] court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction). . . . No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.”); Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 YALE J. REG. 1, 2 (1998) (“[T]he United States Supreme Court announced a two-step test for judicial review of agency interpretations of statutes. First, the court must ask if the statute is ambiguous: if the statute is clear, the court should give effect to the expressed intent of Congress. Second, if the statute is unclear, the court must accept the agency’s interpretation as long as it is reasonable. This test, [is] often called the ‘Chevron two- step.’”). 160 See David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1242–43 (1985). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 25 transfers unfettered lawmaking power to the executive, creating significant separation-of-powers concerns. The Court’s deviation from the original intelligible principle conclusively demonstrates that the erosion of the intelligible principle has ren- dered it a useless standard for nondelegation enforcement. In fact, between Whitman in 2001 and Gundy in 2018, the Court has remained almost silent by largely refusing to even consider the question of impermissible delegations.161 It was not until the Court’s 2015 decision in De- partment of Transportation v. Ass’n of American Railroads162 that nondelegation concerns resurfaced, primarily within the lengthy concurrence authored by Justice Thomas.163 In American Railroads, the Association of American Railroads (the “Association”) attempted to challenge Congress’s delegation that permitted the National Railroad Passenger Corporation (“Amtrak”) to issue “metrics and standards” which would regulate the scheduling of railroad services.164 The Association proceeded to argue that since Amtrak was a private entity, any congressional delegation to Amtrak was unconstitutional.165 The Court rejected that argument, holding instead that Amtrak was a quasi-governmental entity.166 Rather than determining whether the statute granting Amtrak the authority to issue “metrics and standards” was a constitutional delegation of authority, the Court instead remanded the case since the Court of Appeals had not ruled on that particular issue, and the Court thereby avoided the chance to reconsider the merits of nondelegation and its application.167 The third and final step in the path to the collapse of the intelligible principle standard came with the Supreme Court’s full retreat away from requiring the factors of conditional legislation to limit the discretionary scope of delegation. Beginning with A.L.A. Schechter Poultry and continuing until Justice Gorsuch raised the issue in his Gundy dissent, the Court completely abandoned its tradition of calling for conditional findings in

161 Despite the incessant delegations of legislative authority and promulgations of administrative rules, from Whitman until Gundy, the Court discussed nondelegation and the intelligible principle standard (in the abstract) in only nine cases, without directly applying the nondelegation inquiry in any of them. See Johnson v. United States, 135 S. Ct. 2551, 2575 (2015) (Alito, J., dissenting); Dep’t of Transp. v. Ass’n of Am. R.R.s, 135 S. Ct. 1225, 1234 (2015); Reynolds v. United States, 565 U.S. 432, 438 (2012); Sykes v. United States, 564 U.S. 1, 15–16 (2011); Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55–56 (2011); Dillon v. United States, 560 U.S. 817, 842–43 (2010) (Stevens, J., dissenting). 162 135 S. Ct. 1225 (2015). 163 See id. at 1240–55 (Thomas, J., concurring). 164 Id. at 1228. 165 Id. 166 See id. 167 See id. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

26 George Mason Law Review [Vol. 28:1 nondelegation cases, or calling for agencies to satisfy some prerequisite as a case-by-case factfinder before promulgating binding rules or laws.168 Ra- ther, the Court has continually allowed Congress to delegate purely legislative authority to the President and executive agencies; the Court has not required the executive to make factual determinations before exercising this broad authority. As discussed above, the statute at issue in J.W. Hampton did, in fact, delegate legislative power to the President when it granted him the authority to set tariff rates (even though the Court chose to see this as simply executing the specific policy and plan outlined by Congress).169 Yet even in J.W. Hampton, the President was required to first make a factual determination whether the differences in foreign rates operated as “unequal”— only after making such a factual determination could the President exercise the grant of legislative power and set new rates.170 This fact-finding determination, operating as a prerequisite to the President’s exercise of legislative authority, functioned as a type of conditional legislation.171 In both Panama Refining Co. and A.L.A. Schechter Poultry, the Court clearly stated that requirements of conditional legislation must be present when Congress delegates its authority.172 Yet the subsequent Court abandoned this requirement, weakening the intelligible principle standard by allowing Congress to delegate purely legislative—and virtually unrestricted— authority with no practical limitations on either the policy pursued or means utilized by the executive agency.173 This retreat by the Court undermined one of the essential principles of nondelegation—policy accountability.174 All told, the Court’s decision to uphold vague, broad policy objectives and the subsequential limitless authority exercised by executive agencies—combined with the Court’s increasingly erroneous rearticulation of the intelligible principle in Mistretta and the removal of conditional legislation—rang the death knell of the operational intelligible principle

168 The single deviation from this broad trend comes from Justice Thomas’s concurrence, which is discussed above. See Dep’t. of Transp., 135 S. Ct. at 1240–55 (Thomas, J., concurring). 169 See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 405 (1928). 170 See id. 171 Id. at 407. 172 See Panama Refining Co. v. Ryan, 293 U.S. 388, 415 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935). 173 See Gundy v. United States, 139 S. Ct. 2116, 2139–40 (2019) (Gorsuch, J., dissenting) (“This mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Con- stitution, in history, or even in the decision from which it was plucked. Judges and scholars represent- ing a wide and diverse range of views have condemned it as resting on ‘misunderst[ood] historical foundations.’”). 174 See id. at 2134–35. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 27 standard.175 Today, the intelligible principle standard is functionally dead, demonstrated by the perpetual parade of unconstrained delegation as Congress seeks to give away all policy decisions and avoid political accountability. With the classic intelligible principle standard dead and the enforcement of the strict originalist understanding of nondelegation un- likely, it is time to contemplate whether a moderate rearticulation (and division) of the old standards could breathe life back into nondelegation and return the doctrine to its constitutional foundation.

II. The Multi-Theory Approach to Nondelegation Review

As illustrated by the toothless application and eventual breakdown of the intelligible principle over the remainder of the twentieth century, the intelligible principle standard is manifestly unable to deal with complex delegation questions arising before the Court today.176 Yet the standard continues to exist, in part, due to the difficulty in fashioning a replacement.177 This stems from the nuanced and systematically different types of delegations that can exist and the subsequent difficulty in creating a reliable standard that governs all these varied forms.178 However, by focusing not on developing a single standard and instead focusing on the

175 See Bernard Schwartz, Of Administrators and Philosopher-Kings: The Republic, The Laws, and Delegations of Power, 72 NW. U. L. REV. 443, 446 (1977) (noting that the “intelligible principle” test has “become all but a vestigial euphemism, virtually shorn of practical meaning”). 176 See id. 177 For example, before taking the bench, then-Professor Scalia published an article advocating the idea of a reinvigorated nondelegation standard. See Antonin Scalia, A Note on the Benzene Case, REGULATION, 25, 28 (July/Aug. 1980) (“A doctrine so vague [as the intelligible principle standard], it may be said, is no doctrine at all, but merely an invitation to judicial policy making in the guise of constitutional law. . . . [Thus] the unconstitutional delegation doctrine is worth hewing from the ice.”). However, when on the bench and faced with the challenge of actually creating a new judicially enforceable standard, Justice Scalia found the question too indefinite and uncertain to create a reliable new doctrine. See Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting) (“[T]he doctrine [of nondelegation] . . . is not an element readily enforceable by the courts . . . the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.”). This hesitation to deviate from the failed intelligible principle was explained more fully by an article Justice Scalia published the same year as the Mistretta decision. See Antonin Scalia, The Rule of Law As A Law of Rules, 56 U. CHI. L. REV. 1175, 1184–85 (1989) (stating that if a legal doctrine could not be reduced to a neutral rule that could be technically applied by a judge, then it was not a doctrine enforceable by the courts). In short, considering all then-proposed replacement tests were merely de- bates “of degree,” Justice Scalia was unable to create a new inquiry with sufficiently neutral and technical rules to be judicially enforceable. 178 See Loyola, supra note 4, at 222 (“[T]he Gundy dissent fails to articulate—much as all the Su- preme Court’s nondelegation decisions before it have failed to articulate—a single unifying nondelegation principle broad enough to tie together the various strands of nondelegation jurisprudence while at the same time precise enough to be operationalized as a rule of a constitutional law.”). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

28 George Mason Law Review [Vol. 28:1 diverse nature of the authority delegated and accompanying varied standards against which to measure that authority, the Court may create a viable alternative approach to policing improper delegation.179

A. Step One of the Multi-Theory: Categorizing Delegations of Power

In Whitman, Justice Scalia wrote, “[i]t is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.”180 As an example, he noted that the Clean Air Act’s grant of authority to the EPA to define “country elevators” was a sufficiently trivial delegation and warranted less judicial scrutiny than would “sweeping regulatory schemes.”181 Under this view, different forms or natures of delegation implicate comparatively stricter or looser standards of review. Delegations of authority can therefore be made to fit into rough categories (much like the zones of executive power in Justice Jackson’s seminal Youngstown Sheet & Tube Co. v. Sawyer182 concurrence).183 The proper approach for future cases is to first identify each delegation as falling within a certain category (defined by traditional separation of powers or other jurisprudential divisions) and then apply a narrowly defined standard that is tailored to that category. Unfortunately, the conceptual lines separating the different categories of power and their nuances are not easily articulated.184 While defending the proposed Constitution, James Madison admitted that “[e]xperi- ence has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary; or even the

179 The hesitation to take the step of creating a new standard has likely been due to fear of the disruptions to the structure of the administrative state. But see Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting) (“Nor would enforcing the Constitution’s demands spell doom for what some call the ‘administrative state.’”); see also Joseph Postell, The Nondelegation Doctrine After Gundy, 13 N.Y.U. J.L. & LIBERTY 280, 325 (2020) (“[E]ven if the nondelegation doctrine returns to prominence in constitutional law, it likely would not be the apocalyptic event that some have suggested it would be.”). Re- gardless, worries about residual shocks do not absolve the Court from the duty to reexamine and replace a standard that has clearly failed its purpose—as recently stated in another case where reliance concerns were raised, the Court cannot “perpetuate something we all know to be wrong only because we fear the consequences of being right.” Ramos v. Louisiana, 140 S. Ct. 1390, 1408 (2020). 180 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) (citing Loving v. United States, 517 U.S. 748, 772–73 (1996); United States v. Mazurie, 419 U.S. 544, 556–557 (1975)). 181 Id. 182 343 U.S. 579 (1952). 183 See id. at 635–38 (Jackson, J., concurring); see also supra note 19, and accompanying text. 184 See Ronald A. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administra- tive State, 40 HARV. J.L. & PUB. POL’Y 147, 186 (2017). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 29 privileges and powers of the different legislative branches.”185 Similarly, when grappling with the question of delegated authority for the first time, Chief Justice Marshall acknowledged the difficulty of drawing lines: The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.186 As one starting point, improper delegations of legislative power cannot be determined by drawing lines on the basis of scope alone.187 Thus, the inquiry must examine the scope, nature, and function of the delegated power.188 By looking to the conceptual foundations of the American system of government, Supreme Court precedents from the last two centu- ries, and writings of various scholars seeking to preserve the constitutional separation of powers and accompanying liberty interests, there emerge two clear distinctions which may assist in dividing delegated legislative authority into categories. The first distinction differentiates the broad legislative power of creating liberty-infringing criminal codes or generally applicable rules of private conduct from the narrower legislative power of creating rules of limited applicability that regulate a small group of individuals or entities.189 The second distinction differentiates areas of purely legislative domain from areas of mixed or shared power, where the delegee already traditionally exercised some measure of independent authority.190 By relying on

185 THE FEDERALIST NO. 37, at 172 (James Madison) (Mary Carolyn Waldrep ed., 2014). 186 Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46 (1825). 187 See Cass, supra note 184, at 177 (“[I]dentifying an improper delegation of power requires understanding the power’s nature rather than its scope. With this in mind, a broad authorization for exercise of a relatively minor power that is properly associated with the work of another branch does not fail simply because it is broad. By the same token, a narrow authorization for the exercise of a power of great importance that is not properly associated with the work of another branch does not become constitutional simply because it is narrow.”). 188 See Schoenbrod, Delegation Doctrine, supra note 160, at 1227 (“The test of permissible delegation should look not to what quantity of power a statute confers but to what kind.”) (emphasis added). Additionally, focusing on the nature of the power delegated in addition to the scope of the power delegated is not intended to dismiss the importance of Justice Thomas’s point regarding the problems surrounding potential delegations of massive scope. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 487 (2001) (Thomas, J., concurring) (“I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’”). 189 See Cass, supra note 184, at 186–87. 190 See Alexander Volokh, Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Com- mon Law, 66 EMORY L.J. 1391, 1394 (2017) (“Congress can delegate without an intelligible principle MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

30 George Mason Law Review [Vol. 28:1 these two distinctions—first dividing all potential delegations of authority into functions of solely legislative basis versus functions of shared inherent basis, and then further dividing the functions of solely legislative basis into general legislative rules versus limited legislative rules—we arrive at three distinct categories of delegable power by which to test the Multi-Theory.191 The first category, receiving the strictest review, contains delegations of authority concerning criminal liability and generally applicable rules of private conduct.192 The second category contains delegations of authority relating to rules of limited applicability, or rules that apply to only a small group and setting.193 The third category contains delegations of authority in a field where power is shared, or where the delegee also possesses inherent authority over the subject matter of the particular government function, reflecting the shared or interlocking nature of what some scholars call the “Inherent-Powers Corollary.”194

1. Category One—Legislative Power: Rules of Private Conduct and Criminal Liability

Category One contains all delegations of exclusively legislative governmental functions that create (1) generally applicable rules to regulate society or (2) criminal sanctions and criminal liability.195 These two functions represent areas where the government may intrude the furthest into individual liberty, and thus deserve the highest deference to the classic separation-of-powers concerns.196 Despite Chief Justice Marshall’s hesitation to draw the “precise boundary” of properly delegated power, the early Wayman opinion still even when the delegate lacks inherent power, as long as the subject matter of the delegation is interlinked with an area where the delegate does have inherent power.”); see also William D. Araiza, Toward a Non-Delegation Doctrine That (Even) Progressives Could Like, AM. CONST. SOC’Y SUP. CT. REV. 2018– 2019, at 211, 238 (“Congress is allowed to provide less of a standard when delegating to an entity . . . who possesses some measure of independent constitutional authority to act in that area.”). 191 As mentioned previously, the selection of these distinctions is merely an exercise in the possible pragmatic distinctions that may be made along constitutionally relevant lines. See supra note 23. For a discussion of other possible categories, see infra note 258. 192 See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (“[I]t is the peculiar province of the legislature to prescribe general rules for the government of society.”). 193 See Cass, supra note 184, at 186 (“The difference between a general rule for the ‘regulation of the society’ (on the one hand) and a rule that applies to a more circumscribed group and setting (on the other hand) seems an appropriate place to begin drawing the line between determinations that must be exercised only by the legislative branch (in concert with the President) through constitutionally prescribed procedures for lawmaking and those that may be assigned to others.”). 194 See Volokh, supra note 190, at 1397–406; Araiza, supra note 190, at 248–49. 195 See Cass, supra note 184, at 186–87. 196 See id. at 186. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 31 offered the key to beginning the analysis. Marshall’s Wayman standard— “[i]t will not be contended that Congress can delegate . . . powers which are strictly and exclusively legislative”—stems directly from the Framers’ understanding of legislative powers.197 In The Federalist No. 75, Alexander Hamilton offered the Framers’ common-sense definition of legislative powers: “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society.”198 A few es- says later, Hamilton wrote again, “The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated.”199 The Constitution carefully divided power between the three branches of government, but it also placed more constrictive restraints on the legislature by prescribing the precise manner with which laws may be enacted—bicameralism and presentment.200 Laws that apply broadly to the entirety of society and regulate the private conduct of all citizens pose a distinct threat to the liberty and individual freedom of those citizens. Such laws must therefore be created by requiring “Congress to assemble a social consensus before choosing our nation’s course” rather than by the unilat- eral decision of the President or an agency head.201 Because these broad applicable rules of private conduct pose a sweeping threat to individual liberties, it is necessary that such rules are created only by Congress and only pursuant to the constitutional process of bicameralism and presentment.202 Thus, should there be any delegation of authority purporting to grant general rulemaking authority, such a delegation should receive the highest level of judicial scrutiny and should be evaluated using the most rigorous test for determining constitutionality. As in A.L.A. Schechter Poul- try, where the offending statute permitted the President to unilaterally establish “codes of fair competition” for virtually all industries and trades,203

197 Wayman v. Southard, 23 U.S. (10 Wheat) 1, 42–43 (1825). 198 THE FEDERALIST NO. 75, at 366 (Alexander Hamilton) (Mary Carolyn Waldrep ed., 2014) (emphasis added). 199 Id. No. 78, at 379 (Alexander Hamilton). 200 See U.S. CONST., art. 1, sec. 7. 201 Gundy v. United States, 139 S. Ct. 2116, 2145 (2019) (Gorsuch, J., dissenting). Justice Gorsuch also stated, “[I]f laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide sta- bility and fair notice.” Id. at 2135; see also, Schoenbrod, Delegation Doctrine, supra note 160, at 1283–84 (“A statute that states a general rule curtailing liberty or property will probably affect many people and so require broad support to gain passage. An administrator, in contrast, is insulated somewhat from electoral and other political concerns and can curb liberty or property on a case-by-case basis.”). 202 See INS v. Chadha, 462 U.S. 919 , 948 –49, 958–59 (1983) (holding that laws may only be changed by a coordinated effort of House, Senate, and the President, and that this legislative process is a safeguard against “bad laws” and “despotism,” as well as a “way to preserve freedom”). 203 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 521–22 (1935). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

32 George Mason Law Review [Vol. 28:1 delegating authority to create broadly applicable rules of private conduct to the executive is “delegation running riot.”204 The power to create codes of criminal liability—particularly those which involve imprisonment—is a power which similarly infringes on the core liberty concerns underpinning the separation of powers.205 If, as Mad- ison argued, joining the legislative and executive powers risks tyranny, that risk must presumably be magnified when the combination of powers allows a declaration of what is criminally prohibited and the power to enforce that criminal prohibition.206 Since a delegee such as the President possesses no independent constitutional authority to declare the substance of criminal law, it follows that more stringent requirements may be placed on any delegation in such an area to ensure that the delegee is truly limited to implementing the will of the legislature.207 Concern over delegations of authority that permit the creation of criminal liability is reflected throughout the Supreme Court’s history.208 Yet in the modern era, Congress “freely delegate[s] the core legislative business of writing criminal offenses to unelected” bureaucrats.209 As of three decades ago, the Code of Federal Regulations contained approximately 300,000 agency-

204 Id. at 553 (Cardozo, J., concurring). 205 See generally Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 995 (2006) (discussing the need for a strict separation of powers when the federal government uses its criminal authority, since “[t]he state poses no greater threat to individual liberty than when it proceeds in a criminal action. . . . [where] the state assumes the power to remove liberty and even life”). 206 See THE FEDERALIST NO. 47, at 235 (James Madison) (Mary Carolyn Waldrep ed., 2014). 207 See id. at 237. 208 See, e.g., Gundy v. United States, 139 S. Ct. 2116, 2148 (2019) (Gorsuch, J., dissenting) (“[W]hile Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That ‘is delegation running riot.’” (quoting A.L.A. Schechter Poultry, 295 U.S. at 553 (Cardozo, J., concurring))); Nat’l Cable Television Ass’n v. United States, 415 U.S. 352, 352–53 (1974) (Marshall, J., concurring in part) (“The notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930’s, has been virtually abandoned by the Court for all practical purposes, at least in the absence of a delegation creating ‘the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of [constitutionally] protected freedoms.’” (quoting United States v. Robel, 389 U.S. 258, 272 (1967) (Bren- nan, J., concurring))); United States v. Sharpnack, 355 U.S. 286, 297–98 (1958) (Douglas, J., dissenting) (“The power to make laws under which men are punished for crimes calls for as serious a deliberation as the fashioning of rules for the seizure of the industrial plants involved in the Youngstown case. Both call for the exercise of legislative judgment; and I do not see how that requirement can be satisfied by delegating the authority to the President, the Department of the Interior, or, as in this case, to the States.”). 209 United States v. Baldwin, 745 F.3d 1027, 1030 (10th Cir. 2014). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 33 passed regulations carrying criminal penalties,210 while crimes from statutes properly enacted through bicameralism and presentment numbered less than 5,000.211 Even more troubling, despite outnumbering statutory criminal rules sixty to one, agency-made criminal rules often lie buried deep within the Code of Federal Regulations and can only be found by “scratching around.”212 Depriving citizens of life and liberty is the greatest power wielded by the federal government, and therefore also falls among the “great powers” of Congress that must be most carefully guarded to ensure “the fundamental principles of a free Constitution are [not] sub- verted.”213 In sum, both the creation of generally applicable rules of private conduct and the creation of criminal codes and criminal liability are functions which lie solely and completely within the purview of the legislature. As Justice Kennedy said in Clinton v. New York,214 “[l]iberty is always at stake when one or more of the branches seek to transgress the separation of powers.”215 These two types of legislative powers lie at the heart of Con- gress’s purpose, and must therefore be protected by the most rigorous nondelegation standards to ensure that the core liberties of the people are not infringed.

2. Category Two—Legislative Power: Rules of Limited Application

The second category of delegations is more simply defined. It contains all remaining delegations of legislative-based power which do not permit the creation of broadly applicable rules binding society or the creation of criminal liability (as in Category One above) and which do not

210 See John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 216 (1991) (“By one estimate, there are over 300,000 federal regulations that may be enforced criminally.”). 211 See John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes, HERITAGE FOUNDATION (June 16, 2008), https://perma.cc/4P54-TSZ4. 212 Thus, destroying the concept of adequate notice to the regulated party. See generally Jason Nichols, “Sorry! What the Regulation Really Means Is . . .”: Administrative Agencies’ Ability to Alter an Ex- isting Regulatory Landscape Through Reinterpretation of Rules, 80 TEX. L. REV. 951, 951 (2002) (explaining how parties—when defending against enforcement actions by the EPA—routinely “charg[e] the EPA with dereliction of ‘fair notice’ in administrative rulemaking”). 213 THE FEDERALIST No. 47, at 236–37 (James Madison) (Mary Carolyn Waldrep ed., 2014). 214 524 U.S. 417 (1998). 215 Id. at 450 (Kennedy, J., concurring); see also A.J. Kritikos, Resuscitating the Non-Delegation Doc- trine: A Compromise and an Experiment, 82 MO. L. REV. 441, 482 (2017) (“Eighty years of precedent might be enough of a reason to decline enforcing the non-delegation doctrine in civil matters, but stare decisis is a poor excuse to allow liberty to be taken away when no legislative enactment sanctions it.”). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

34 George Mason Law Review [Vol. 28:1 implicate areas where the delegee exercises corollary inherent power (as in Category Three below). Rules of limited applicability encapsulate the majority of existing delegations and pertain to less sweeping delegations, whereby rules are made to govern limited actions, groups, or localities.216 These rules look less like generally applicable rules for the regulation of society and more like sce- narios where Congress carved out a small zone of impact and gave the discretion for the promulgation of rules in that zone to executive or judicial officers.217 One list noted “determinations respecting the management of resources already in the government’s domain, decisions on licenses for others to use those resources, judgments on how to deploy our military assets in pursuit of the common defense, or rulings governing concrete disputes on legal claims” as a few examples of limited rules.218 This demarcation can be thought of in multiple ways—either the lesser powers of Congress or a limited application of the greater powers of Congress. The first manner of determining limited rules was offered by Chief Justice Marshall in a combined reading of Wayman and M’Culloch v. Maryland.219 In Wayman, Chief Justice Marshall noted a difference between the powers over “important subjects” and those over subjects “of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.”220 In M’Culloch, Chief Justice Marshall listed among the “great powers” of Congress the various forms of governing over society as a whole but separately discussed the power to create post roads—perhaps one of the lesser powers where rules have limited applicability and may therefore be properly delegated away.221 A similar lesser power from the era of the Founding was the selection of the site for the District of Columbia. The first Congress determined the size and general location of the nation’s

216 See Cass, supra note 184, at 186 (“The difference between a general rule for the ‘regulation of the society’ (on the one hand) and a rule that applies to a more circumscribed group and setting (on the other hand) sees an appropriate place to begin drawing the line between determinations that must be exercised only by the legislative branch (in concert with the President) through constitutionally prescribed procedures for lawmaking and those that may be assigned to others.”). 217 See id. at 186–87. 218 Id. at 187. 219 17 U.S. (4 Wheat.) 316 (1819). 220 Wayman v. Southard, 23 U.S. (10 Wheat) 1, 43 (1825). 221 M’Culloch, 17 U.S. at 407–08, 417; see also Kritikos, supra note 215, at 446 (“We might then assume [Marshall] means that exertions of great powers should be subject to a strict non-delegation rule, while lesser powers require only a ‘general provision’ that can leave it to another entity ‘to fill up the details.’ One enumerated power, not mentioned by Marshall in M’Culloch as a great power, is the power to establish post offices, possibly an example of a lesser power.”). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 35 new capital (in keeping with the constitutional requirements).222 Since this was a lesser power, however, fixing the specific location and boundaries of the District was properly delegated to executive-branch commissioners, as Congress had both determined the overall policy question and provided the commissioners with strict parameters in which to act.223 The second manner of determining limited rules is found in limited applications of Congress’s “greater powers” (e.g., the “power[s] to lay and collect taxes,” “to borrow money,” or “to regulate commerce”)224—cases where the broad powers of Congress are employed not to regulate society as a whole but to regulate a limited portion of society. For example, the Nuclear Regulatory Commission exercises a limited power when creating licensing regimes and promulgating safety standards for private nuclear facilities because these rules are directed at a limited, defined sector of the nation.225 Similarly, Amtrak exercises a limited power when developing standards to govern the nation’s train systems,226 and the Environmental Protection Agency exercises a limited power when fixing maximum levels of emissions that factories may produce.227 While the rules springing from such delegations do ultimately affect society, their limited scope implicates less of the liberty concerns present in Category One and they may therefore be dealt with through a less rigorous nondelegation standard.

3. Category Three—Interlocking Inherent Powers228

Not all powers which may be exercised (or delegated) by Congress fall within areas that the Constitution reserves exclusively to the legislature. The third category of delegable power concerns delegations of authority in areas where the Constitution (or, sometimes, tradition) recognizes both the legislature and the entity receiving the delegated power as inherently possessing authority.

222 See U.S. CONST. art. I, § 8, cl. 17 (“[S]uch District (not exceeding ten Miles square) as may . . . become the Seat of the Government of the United States.”). The location of the new capital was a fiercely debated political topic of the time, and despite being one of Congress’s lesser powers, this determination was considered a policy decision of major importance. See JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 50–52, 69–78 (2000). 223 See Cass, supra note 184, at 182. 224 M’Culloch, 17 U.S at 381. 225 See 42 U.S.C. §§ 5841–54. 226 See Passenger Rail Investment and Improvement Act of 2008, Pub. L. No. 110-432, § 207, 122 Stat. 4907, 4916 (2008). 227 See 42 U.S.C. § 7408. 228 A similar demarcation regarding this category of delegation was termed the “Inherent-Powers Corollary” to the nondelegation doctrine by Professor Alexander Volokh. See Volokh, supra note 190, at 1394. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

36 George Mason Law Review [Vol. 28:1

While certain powers of the federal government are unquestionably housed within the enumerated powers of a single branch (e.g., only federal courts can exercise the Article III “judicial Power”),229 this does not mean that every conceivable function of the federal government falls cleanly into the purview of a single branch.230 Justice Gorsuch acknowledged this overlap in Gundy, writing, “[w]hile the Constitution vests all federal legislative power in Congress alone, Congress’s legislative authority sometimes overlaps with authority the Constitution separately vests in another branch.”231 When the Constitution does not uniquely designate a particular function to Congress alone, courts may invoke a less stringent test to measure whether Congress has delegated its power.232 This subset of delegation was first suggested in the modern era by Justice Scalia, who implied Congress may provide a less rigorous standard when delegating power to an entity (such as courts or the executive) that inherently possesses a measure of proper and independent constitutional authority within the same area.233 Although Justice Scalia did not flesh out

229 U.S. CONST. art. III, § 1. However, some commentators have argued that Congress may never restrict jurisdiction of constitutional claims to such an extent that there is no court available to hear such claims—essentially, the idea that Article III jurisdiction must vest somewhere—leading to the in- teresting question of whether state courts could exercise “[t]he judicial Power” if Congress disestab- lished all lower federal courts and restricted the Supreme Court to appellate review only. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1372 (1953) (arguing that it is “a necessary postulate of constitutional government” that “a court must always be available to pass on claims of constitutional right to judicial process, and to provide that process if the claim is sustained”). 230 See Freytag v. Comm’r, 501 U.S. 868, 909–12 (1991) (Scalia, J., concurring in part and concurring in the judgment); see also Lawson, supra note 76, at 358 (arguing that claims to veterans’ benefits impinge the respective roles of Congress, the courts, and the executive, so decisions of such claims could be constitutionally entrusted to any of the three branches). 231 Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting). Justice Gorsuch continued: “So, for example, when a congressional statute confers wide discretion to the executive, no separation-of-powers problem may arise if ‘the discretion is to be exercised over matters already within the scope of executive power.’” Id. (quoting Schoenbrod, Delegation Doctrine, supra note 160, at 1260). However, this language appears to be a premature dismissal of separation-of-powers concerns—simply because the proper inquiry into a function of shared constitutional power may be less robust than an inquiry into a function deriving solely from the legislature does not inherently mean that there will never be separation-of-powers violations. 232 This category is notably distinct from, though related to, the proposition of some scholars that attempted delegations of authority that directly invoke another branch’s exclusive authority (such as merely executing the laws) are proper because they are not delegations of legislative authority. See, e.g., Schoenbrod, Delegation Doctrine, supra note 160, at 1261 (“The President’s discretion in the conduct of the war is not a delegation because the President is not exercising legislative power.” (emphasis added)). 233 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) (“It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 37 the outlines of this category of overlapping powers in Whitman, the parameters become clearer when examining the precedent on which Justice Scalia relied. Both United States v. Mazurie234 and Loving v. United States235 stand for the proposition that the delegation inquiry is relaxed when the delegee possesses inherent constitutional or traditional authority over the same subject matter. Furthermore, threads of the Inherent-Powers Corol- lary may be found in the earliest nondelegation cases and are spelled out explicitly in more than eight decades of jurisprudence.236 While striking down the improper delegation in Panama Refining, the Supreme Court chose to distinguish the commerce-based delegation at hand from the trade embargo delegation recognized earlier in Cargo of the Brig Aurora.237 In cases such as the latter, Congress delegated to the executive “an authority which was cognate to the conduct by him of the foreign relations of the Government.”238 Since the statute in Cargo of the Brig Aurora authorized the President to act in a way he could not under his own exclusive power, perhaps Congress truly did grant him new authority— authority ‘cognate’ to his inherent constitutional authority over foreign affairs.239 Only a year after deciding Panama Refinery, the Court ex- pounded on this twilight zone of overlapping power in United States v. Curtiss-Wright Export Corp.240 while upholding the delegation to create an arms embargo. The Court found the delegation to be extremely broad and unlimited, and no doubt invalid “if it were confined to internal affairs,”241 but also noted: [W]e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and

conferred.” (citing Loving v. United States, 517 U.S. 748, 772–73 (1996); United States v. Mazurie, 419 U.S. 544, 556–57 (1975))). Justice Scalia embarked on a similar delineation of various types of delegation during his Mistretta dissent, while discussing “ancillary powers.” Mistretta v. United States, 488 U.S. 361, 417 (1989) (Scalia, J., dissenting). 234 419 U.S. 544 (1975). 235 517 U.S. 748 (1996). 236 See Volokh, supra note 190, at 1394 (noting the historical efficacy of this subset of delegations, in that “[f]or at least eighty years, and continuing through modern cases, the Supreme Court has recognized that the requirement of an intelligible principle is relaxed—or dropped entirely—when the delegate already has some inherent power over the subject matter”); see also Gundy, 139 S. Ct. at 2140 (Gorsuch, J., dissenting). 237 See Panama Ref. Co. v. Ryan, 293 U.S. 388, 423–24 (1935) (discussing Cargo of The Brig Aurora v. United States, 11 U.S. (7 Cranch) 382 (1813)). 238 Id. at 422. 239 See Volokh, supra note 190, at 1398–99. 240 299 U.S. 304, 319–20 (1936). 241 Id. at 315. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

38 George Mason Law Review [Vol. 28:1

exclusive power of the President as the sole organ of the federal government in the field of international relations.242 In other words, delegations to the President are less scrutinized when relating to inherent executive functions (even if the resulting actions were not within the exclusive core of the President’s inherent authority).243 Justice Scalia did not rely on Cargo of the Brig Aurora or Curtiss-Wright, but both cases he cited arrived at the same conclusion. In Mazurie, while upholding a delegation of commerce regulatory power delegated to a tribal council, then-Justice William Rehnquist wrote: “This Court has recognized limits on the authority of Congress to delegate its legislative power. Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.”244 Two decades later, Justice Kennedy wrote in Lov- ing that Congress’s delegation of rulemaking for courts-martial procedure lay within an area over which the President possessed the same type of ‘independent authority.’245 More particularly, the nondelegation inquiry is relaxed when “[t]he delegated duty . . . is interlinked with duties already assigned to the President by express terms of the Constitution.”246 In sum, there remains a distinct difference between Congress attempting to delegate a purely legislative field to the executive (or some other entity) and Congress attempting to delegate its portion of power over a shared field. Where a delegation grants power to an entity with no plausible free-standing authority in that area, the separation-of-powers concerns are numerous. As a result, the test for proper and improper delegation must be strict (implicating Category One). Conversely, where a delegation grants powers over an area where the delegee already exercised its own power (such as military courts-martial), the separation-of-powers concerns are much less robust (implicating Category Three).247 This relaxed application of nondelegation holds up logically—if the executive

242 Id. at 319–20. 243 See Volokh, supra note 190, at 1399; see also Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 TUL. L. REV. 265, 346–55 (2001); Edward T. Swaine, The Constitution- ality of International Delegations, 104 COLUM. L. REV. 1492, 1546–48 (2004). 244 United States v. Mazurie, 419 U.S. 544, 556–57 (1975) (emphasis added). 245 Loving v. United States, 517 U.S. 748, 772 (1996) (“Perhaps more explicit guidance [to the Ex- ecutive] as to how to select aggravating factors would be necessary if delegation were made to a newly created entity without independent authority in the area . . . [but] the same limitations on delegation do not apply ‘where the entity exercising the delegated authority itself possesses independent authority over the subject matter.’” (quoting Mazurie, 419 U.S. at 556–57)). 246 Id. (emphasis added). 247 However, ‘less robust’ does not mean ‘nonexistent.’ See supra note 231, and accompanying text. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 39 could already act in a given field with independent authority (and Con- gress could as well), there seems less harm in Congress ceding to the executive more control over a function within that same field.248 For example, in Zivotofsky v. Kerry,249 the President and Congress bat- tled over whether the decision whether the choice of nation to include in a foreign-born citizen’s passport was a function of the President’s inherent power to recognize foreign nations or Congress’s inherent power to create a uniform system of naturalization.250 Both sides presented compelling arguments. Setting aside the Court’s conclusion in the case—imagine if Congress delegated the passport function of its naturalization power to the President. Since this function naturally fell into the same area as the President’s recognition power, the delegation does not violate any clear barriers between the two branches, and a much less demanding nondelegation standard is required.251 The expanse of this particular category of delegation may be harder to define for the purposes of this Comment, as it reflects less the constitutional powers explicitly enumerated to each branch and more any particular governmental function where the inherent authority of the two branches overlaps enough to give each a valid claim of operation. A (non- exhaustive)252 list of areas where inherent powers are readily present might include: embargos,253 tariffs,254 various war powers,255 foreign affairs overlapping into domestic affairs,256 and military affairs.257 Before proceeding to the varying standards by which to measure these categories of power, it must be noted that the categories listed offer a rough approximation, rather than a comprehensive list, of the types of

248 See Volokh, supra note 190, at 1406. 249 576 U.S. 1 (2015). 250 Id. at 10, 40–41. 251 See Alison Peck, Withdrawing From NAFTA, 107 GEO. L.J. 647, 671 n.140 (2019) (“[W]here Con- gress has not defined the Executive’s role in a traditionally legislative arena, the Court will rely on the nondelegation doctrine to read statutes narrowly to deny executive power to act.”). 252 While the few examples listed here refer primarily to areas where Congress might delegate to the executive, that is certainly not to say that other entities cannot be the recipients of similar inherent-power delegations. See Volokh, supra note 190, at 1397 (“[The Inherent-Powers Corollary] extends beyond just the President—it applies to any delegate, whether it’s an Indian tribe or a federal court.”); see also Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405 (2008). 253 See Cargo of The Brig Aurora v. United States, 11 U.S (7 Cranch) 382, 388 (1813). 254 See Am. Inst. for Int’l Steel, Inc. v. United States, 376 F. Supp. 3d 1335, 1340 (Ct. Int’l Trade 2019). 255 See 50 U.S.C. § 1541; see also Campbell v. Clinton, 203 F.3d 19, 27 (D.C. Cir. 2000), cert. denied, 531 U.S. 815 (2000). 256 See Am. Inst. for Int’l Steel, 376 F. Supp. 3d at 1340. 257 See Loving v. United States, 517 U.S. 748, 772 (1996). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

40 George Mason Law Review [Vol. 28:1 divisions which may be made to assist the taxonomy of the Multi-Theory endeavor.258

B. Step Two of the Multi-Theory: Applying Separate Nondelegation Tests to the Categories

By delineating the variety of delegable powers into distinct categories, the nondelegation inquiry is transformed from a toothless legal fiction into a functional Multi-Theory of Nondelegation, comprised of two steps with three categories that have three corresponding tests. At step one of the analysis, courts will look to the nature, scope, and function of the power being delegated to determine which category of power it is properly classified into (Category One, Two, or Three). Once the correct category has been determined, step two of the analysis simply applies that category’s corresponding test to determine whether the discretion and power delegated is too great for that category of power.

1. Test for Category One

The applicable nondelegation standard must be the most stringent for government functions that fall within Category One—generally applicable rules that order society and the creation of criminal liability. Due to the severe threat to liberty posed by these particular types of power, it is perhaps best to repeat the earliest mantra of nondelegation: Congress un- equivocally cannot delegate away the power to make these types of rules. The inquiry, therefore, is simple: Does the attempted delegation grant legislative power or nonlegislative power?259 While the simplicity and rigidity

258 Other divisions that could be recognized (and which are couched in established legal principles as legitimate divisions) and should be scrutinized under differing levels of strictness might be divisions such as delegations in modern statutes versus delegations in older statutes (in order to avoid the risk of judicial nullification of older statutes and thus causing regulatory uncertainty; see, for example, Jonathan J. Adler & Christopher J. Walker, Delegations and Time, 105 IOWA L. REV. 1931, 1988 (2020)); or delegations to impose incarceration versus delegations to merely impose monetary fines (another variation on what this Comment terms Category 1); or delegations to independent agencies versus delegations to executive agencies (although the prevailing sentiment on today’s Court may be to reel back the separation and independence permitted to some agencies; see, for example, Seila Law, L.L.C., v. CFPB, 140 S. Ct. 2183, 2216 (2020) (Thomas, J., concurring in part and dissenting in part) (arguing that the separation of agencies into “independent” and “executive” was a “fundamental departure from our constitutional structure with nothing more than handwaving and obfuscating phrases”)). 259 See Schoenbrod, Delegation Doctrine, supra note 160, at 1252–53; see also DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 180– 91 (1995). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 41 of such a test runs counterintuitive to the last eighty years of nondelegation jurisprudence, it is an appropriate test for Category One considering that the Court is enforcing a constitutional check rather than creating one, and that this category contains powers which, if abused, pose the greatest threats to liberty. In separating legislative power from nonlegislative power within Cat- egory One, the appropriate analysis asks whether the delegating statute is a rules statute or a goals statute.260 Simply defined, rules statutes define permissible (general rules of private conduct) and impermissible (criminal codes) behavior in society.261 Goals statutes, on the other hand, merely “state goals, which usually conflict, and delegate the job of reconciling any such conflicts to others.”262 Thus, proper rules statutes fulfill the legislative process in determining the rules governing private conduct and only delegate instructions or authorization for the executive or judiciary to uti- lize their inherent powers of law execution and interpretation.263 How- ever, goal statutes—by stating only policy objectives and ceding the discretion to make the rules to meet those objectives—“necessarily delegate legislative power [since] reconciling competing goals is a task for the policy-making branch of government.”264 Thus, goals statutes delegate away legislative power, and therefore only rules statutes may survive the nondelegation inquiry when dealing with a function that falls into Category One.265

2. Test for Category Two

Category Two corresponds to the legislative rules of limited applicability—the lesser powers and the limited application of the greater powers of Congress. Congress must decide the overall policy and establish specific policy directives in the organic statute and must establish the standard and criteria by which the agency action is measured, while the agency

260 See Schoenbrod, Delegation Doctrine, supra note 160, at 1253; see also Kritikos, supra note 215, at 447. 261 See Kritikos, supra note 215, at 447. 262 Schoenbrod, Delegation Doctrine, supra note 160, at 1253. 263 See Kritikos, supra note 215, at 447. 264 Id. 265 Professor Schoenbrod applies the rules statute/goals statute test to all forms of delegation, but this Comment utilizes a modified version of that test in applying it only to the types of delegations in Category One. As will be seen later on in Section III.B., goals statutes that provide sufficiently rigorous guidelines and directives will be accepted as permissible delegations for Category Two (rules of limited application). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

42 George Mason Law Review [Vol. 28:1 must make a factual finding to invoke the delegated authority.266 These elements may be simplified to: (1) a specific policy; (2) measurable standards; and (3) fact-finding activation. Each of these requirements traces back to the core nondelegation inquiry from J.W. Hampton, Panama Refin- ing Co., and A.L.A. Schechter Poultry, and “point[s] us back in the direction of the right questions” to create an enforceable doctrine.267 For the first element, Congress must clearly state the specific policy objectives the agency is to pursue, rather than merely stating a general policy area in which to operate.268 Additionally, Congress must clearly state this specific goal for the agency in the text of the organic statute and not merely in the unreliable legislative history.269 In application, the “public interest” policy objective from National Broadcasting Corp. would clearly fail this factor,270 as would the “public health” policy objective from Whitman.271 Both these dubious policy statements are far too broad to be enforced or reviewed and ultimately takes out of the hands of Congress the actual policy direction pursued by the agency. Conversely, the delegation in American Railroads would satisfy the specific policy requirement— the statute included a number of factors describing the direction of improvement Congress desired, making it possible to determine whether Amtrak’s subsequent exercise of the delegated power followed the direction Congress intended.272 Under the second element, Congress must provide measurable standards and boundaries to the delegated authority so that the delegee cannot

266 See Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting) (“[W]e must ask: Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments?”); Panama Ref. Co. v. Ryan, 293 U.S. 388, 415 (1935) (“Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President’s action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.”); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530, 541–42 (1935); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). See generally Dunigan, supra note 61, at 271–75 (describing a modern variation on the three- prong inquiry established in Panama Refining and repeated in the Gundy dissent). 267 Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting). 268 The current unenforced doctrine requires merely a statement of general policy, as articulated by Justice Kagan: “[T]he Court has stated that a delegation is permissible if Congress has made clear to the delegee ‘the general policy’ he must pursue.” Id. at 2129 (plurality opinion) (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). 269 Id. at 2147–48 (Gorsuch, J., dissenting). 270 Nat’l Broad. Co. v. United States, 319 U.S. 190, 194 (1943). 271 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 465 (2001). 272 See Passenger Rail Investment & Improvement Act of 2008, Pub. L. No. 110-432, § 207, 122 Stat. 4907, 4916 (2008). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 43 operate with unchecked discretion.273 Ideally, this will take the form of clearly stated boundaries or a collection of measurable factors—something to measure the agency’s behavior against the original delegation of power and ensure the agency does not usurp more authority than Con- gress explicitly gave.274 In Mistretta, the delegation satisfied this element when Congress elucidated a series of factors and a guideline system to direct the Sentencing Commission in developing a uniform system of sentencing guidelines.275 These factors allowed the Court to analyze and determine whether the Sentencing Commission outstripped the delegated authority at any point.276 Conversely, the Clean Air Act’s attempt at boundaries in Whitman abjectly fails this requirement, as the mandate to protect public health at whatever level the agency decided was “requisite” proved to be a vague and subjective (and therefore unmeasurable) standard.277 The final element in the Category Two test hearkens directly back to executive fact-finding, when Congress instructed the executive to analyze and come to a factual determination before executive-branch officials could promulgate rules pursuant to Congress’s predetermined policy goals.278 Here, however, executive fact-finding deviates slightly from its

273 See Panama Ref. Co. v. Ryan, 293 U.S. 388, 432 (1935) (“[T]he legislature, to prevent its being a pure delegation of legislative power, must enjoin upon [the agency] a certain course of procedure and certain rules of decision in the performance of its function.”). 274 See Araiza, supra note 190, at 234. 275 See Mistretta v. United States, 488 U.S. 361, 375–76 (1989) (“[F]actors for the Commission to consider . . . include . . . age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for a live- lihood.”). Mistretta’s acceptable showing on one element here by having effective measurable standards is not to say that all its nondelegation problems are fixed or that it would survive under the Multi- Theory. 276 See Dunigan, supra note 61, at 273 (“[T]he Commission would be found to have exceeded its authority if it considered factors outside those articulated by Congress, or if it did not conform to the guideline system provided.”). 277 See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473–74 (2001). Since the form of the second element—measurable standards—lends itself to its own potentially flexible standard which might be subject to judicial manipulation, the Court could determine additional factors to narrow the scope of authority Congress may delegate under Category Two. See Dunigan, supra note 61, at 273–74 (propos- ing two additional factors: (1) consideration of whether Congress mandated any daily operations at the agency, and (2) creation of a presumption against any delegated authority in the absence of a clear statement from Congress). 278 Justice Gorsuch noted in Gundy that executive fact-finding continued to appear consistently in Congressional delegations of power, even though no longer called by that name. Gundy v. United States, 139 S. Ct. 2116, 2140 (Gorsuch, J., dissenting) (“[S]ome of the results the Court has reached under the banner of the abused ‘intelligible principle’ doctrine . . . involved laws that specified rules governing private conduct but conditioned the application of those rules on fact-finding . . . .”). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

44 George Mason Law Review [Vol. 28:1 rigid historical form. The size of the federal government and the myriad of functions now executed by the administrative state bars a full return to the by-gone formalism where Congress developed the parameter for every rule and the executive merely found the facts making those rules applicable.279 Instead, the modern form of executive fact-finding would permit delegees to exercise the limited legislative power of Category Two, so long as Congress built into the organic statute a fact-finding mechanism the delegee must complete to activate this limited legislative authority.280 For example, the National Emergencies Act—perhaps the most famous illus- tration of this activation mechanism—allows the President to unlock certain additional powers delegated by Congress upon a factual finding that there exists a national emergency.281

3. Test for Category Three

When Congress and the executive operate in tandem, the federal government is at the zenith of its operating power.282 In recognition of that maxim—and bearing in mind the special nature of interlocking inherent powers—the test for Category Three is designed to be the most deferential and least restrictive test of the Multi-Theory. While some scholars suggest that no standard need be required for delegations of this nature, such a claim prematurely dismisses the real (even if reduced) potential of the delegee to nonetheless overstep the bounds of the delegation. Therefore, a slight standard is still needed. Following the step one determination that the delegated function does in fact fall into an area with interlocking inherent powers, the primary concerns remaining are whether any type of policy goal has been articulated to guide the exercise of the delegation, whether the delegated power (and policy goal) creates conflicts or tension with the delegee’s existing constitutional duties, and whether Congress has created adequate safeguards to monitor the delegation. Simplified, the test becomes: (1) a general policy goal; (2) with no conflict with delegee’s preexisting duty; and (3) adequate procedural safeguards. Even in cases where the Court invoked the interlocking inherent powers doctrine to dramatically reduce the level of delegation inquiry required, the statutes at issue still provided a general policy statement to

279 See Jeffrey A. Wertkin, Reintroducing Compromise to the Nondelegation Doctrine, 90 GEO. L.J. 1055, 1064 (2002). 280 See Dunigan, supra note 61, at 272. 281 50 U.S.C. § 1621(a). 282 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–37 (1952) (Jackson, J., concurring). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 45 direct the exercise of the delegated power.283 In Cargo of the Brig Aurora, the President received the authority to lift trade embargoes, but under the guiding policy that the embargoes were to be lifted only when certain offending countries ceased violating the United States’ trade neutrality.284 Similarly, in Curtiss-Wright, the President received the authority to enact arms bans, but under the guiding policy that the bans should be aimed at “the reestablishment of peace” between certain foreign countries.285 Alt- hough the cases supporting the interlocking inherent powers doctrine illustrate that Congress need not provide specific guidelines for how to exercise such a type of delegated power, they illustrate the need for a “general policy” statement nonetheless.286 The second requirement under the Category Three test is that the delegated interlocking power (and its accompanying statement of policy) cannot create conflicts or tension with the delegee’s existing constitutional duties.287 Such a conflict manifested in Gundy, when SORNA’s delegation—permitting the Attorney General to decide the applicability of a criminal code—created a conflict with the Attorney General’s preexisting Article II mandate to enforce the laws.288 This grant of authority was in- consistent with the Attorney General’s constitutionally required duties, thus creating “a constitutional anomaly.”289 A similar conflict would be found if Congress attempted to delegate to the judiciary the power to initiate and pursue prosecutions—which would directly conflict with the judiciary’s role as a neutral adjudicator.290 The third and final element in the Category Three test asks whether Congress built adequate procedural safeguards into the authorizing

283 In the Multi-Theory, the general policy requirement for Category Three is less stringent than the specific policy requirement for Category Two. 284 See Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 383 (1813). 285 H.R.J. Res. 347, 73d Cong. (1934); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 311–12 (1936). 286 See Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946). 287 See Araiza, supra note 190, at 239. 288 See Gundy v. United States, 139 S. Ct. 2116, 2143–44 (2019) (Gorsuch, J., dissenting) (“SORNA does not involve an area of overlapping authority with the executive. . . . [It] giv[es] the nation’s chief prosecutor the power to write a criminal code rife with his own policy choices . . . .”). 289 Araiza, supra note 190, at 238–39. 290 See Lawson, supra note 76, at 360 (“Surely there are easy cases . . . the courts cannot initiate prosecutions.”); see also In re Michael T. Flynn, 961 F.3d 1215, 1221 (D.C. Cir. 2020) (ordering a district court to cease prosecution after the government motioned to dismiss but the district court attempted to continue prosecution sua sponte, noting the “clearly established legal principles [about] the Execu- tive’s ‘long-settled primacy over charging decisions’” (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 743 (D.C. Cir. 2016))). But see Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 800–01 (1987) (suggesting that courts can initiate prosecutions). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

46 George Mason Law Review [Vol. 28:1 statute to monitor and control the interlocking inherent delegation.291 Procedural safeguards now appear in the administrative scheme of many states, who prefer to enforce nondelegation through institutional safeguards rather than malleable standards.292 However, functional procedural safeguards also appear in many existing statutes addressing functions within interlocking inherent powers. For example, the War Powers Resolution contains multiple procedural safeguards, including a requirement that the President routinely report to Congress regarding how he is using the delegated authority and a termination mechanism to end the use of the delegated authority if Congress does not approve of the manner in which it is used.293

III. The Multi-Theory in Practice

Before concluding, this Comment will attempt to briefly demonstrate—through application of the Multi-Theory of Nondelegation to current nondelegation concerns—how the Multi-Theory’s nuanced and flexible approach to nondelegation maintains enough rigidity to provide the Supreme Court with a legitimate check on Congress’s reckless dispersal of its powers. It will also address how the Multi-Theory of Nondelegation differs from other proposed theories of dealing with improper delegation and potential criticisms of the Theory.

A. Applying the Theory

As Justice Scalia noted in Mistretta, the true problem of nondelegation was the difficulty in creating an applicable and judicially enforceable standard that adequately addresses all the potential variances in improper

291 See Kenneth C. Davis, A New Approach to Delegation, 36 U. CHI. L. REV. 713, 725 (1969) (“[T]he exclusive focus on [nondelegation] standards should be shifted to an emphasis more on safeguards than on standards. . . . [T]he non-delegation doctrine should gradually grow into a broad requirement extending beyond the subject of delegation—that officers with discretionary power must do about as much as feasible to structure their discretion through appropriate safeguards and to confine and guide their discretion through standards, principles, and rules.” (emphasis added)). 292 See Gary J. Greco, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8 ADMIN. L.J. AM. U. 567, 598 (1994) (discussing the states who have moved to a procedural safeguard system of checking improper delegation). 293 See 50 U.S.C. §§ 1543–44. Though not classically thought of as a delegation, the War Powers Resolution grants some of Congress’s power to the President for a certain function of military inter- vention, which Congress claims pursuant to its declaring war powers and the President claims pursuant to the inherent Commander-in-Chief powers. It thus falls within the category of interlocking inherent powers. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 47 delegations.294 The Multi-Theory solves this problem by creating a flexible approach of three categories and three tests, which satisfactorily contain the vast parameters of the doctrine. By applying the Multi-Theory to recent and pending cases posing nondelegation questions, the advantages of using the Theory are illustrated. The cases examined will be Gundy, American Railroads, and American Institute for International Steel, Inc. v. United States295 (a case many thought would be the next nondelegation challenge that the Supreme Court would accept). Gundy survived under the intelligible principle standard, and no doubt American Railroads would have survived as well, since the intelligible principle is now simply a paper tiger that no statute fails. But under the Multi-Theory, not only might the results differ, but the reasoning will be more precise and rooted in proper separation of powers doctrine. The nondelegation challenge in Gundy dealt with the applicability of SORNA’s sex offender registration requirements to offenders whose crime occurred before SORNA’s enactment.296 While Congress made all the rules necessary for the registration of post-passage offenders, it delegated the authority to make those rules applicable or not applicable to pre-passage offenders to the Attorney General.297 In short, the Act authorized the At- torney General to formulate criminal rules and apply them to a subclass of individuals. While the plurality unearthed a hidden intelligible principle from the legislative history and context of the statute, it was this in- congruity of granting the nation’s chief prosecutor the power to create criminal rules that Justice Gorsuch (rightly) recognized as “delegation running riot.”298 Now approach the same question utilizing the Multi-Theory. The first step is to determine which category the delegation falls. Although the power in question pertains to only a limited class of people (convicted sex offenders), it also carries with it the authority to promulgate criminal codes and criminal liability.299 Thus, it implicates the highest level of liberty concerns and falls in Category One. The second step is to apply the rules statute versus goals statute test. Here, section 20913(d) fails abjectly. The provision does not create the actual rules to be applied to pre-passage offenders—instead, it merely hints at a (theoretical) policy goal and leaves

294 See Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting) (“[T]he doctrine [of nondelegation] . . . is not an element readily enforceable by the courts . . . the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.”); see also supra note 177. 295 Am. Inst. for Int’l Steel, Inc. v. United States, 376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019). 296 See 34 U.S.C. § 20913(d). 297 See id. 298 Gundy v. United States, 139 S. Ct. 2116, 2148 (2019) (Gorsuch, J., dissenting). 299 See 34 U.S.C. § 20913(d). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

48 George Mason Law Review [Vol. 28:1 full discretion to the Attorney General to create the rules.300 Only Con- gress should make rules and laws with the power to remove citizens’ liberty, so the pre-passage provision of SORNA violates the nondelegation doctrine. The Multi-Theory would create a different outcome in Gundy. For American Railroads, we must set aside the dispensation of the case on the grounds of the lower court’s error and focus on the delegation at issue.301 In 2008, Congress delegated to Amtrak the authority to “develop new . . . metrics and minimum standards for measuring the performance” of the nation’s trains.302 Although the Court did not reach the point of applying the intelligible principle standard, this delegation is accompanied by more specificity than most and would no doubt pass the test with flying colors. Consider the same delegation now under the Multi-Theory. First, the category—the power delegated here pertains to the creation of standards and rules over the performance of the nation’s train industry. While there is no doubt this is a sizable industry and that the regulations created might very well produce significant consequences, the delegation of authority falls well short of the “general rules regulating society” requirement to move it up to Category One. Instead, this delegation exercises a limited application of Congress’s Commerce Power to a limited sector of the nation, nestling it firmly within Category Two. The applicable test, therefore, is whether Congress provided: (1) specific policy directives; (2) measurable standards; and (3) a fact-finding activation mechanism. By directing Amtrak to measure “performance and service quality,” Congress clearly provided a specific policy directive regarding the purpose of the limited rule. Much like in Whitman, Congress here also provided a list of factors Amtrak was to consider, including “cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services.”303 And while Congress did not build a fact-finding mechanism into the statute, it provided a triggering mechanism nonetheless—the rules were to be made “[w]ithin 180 days after the date of enactment of this Act,” and Amtrak had no authority to sua sponte promulgate rules on its own outside this window.304 Thus, the delegation in American Railroads satisfies all three requirements for the Cat- egory Two test.

300 See id. 301 See Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1228 (2015) (holding that Amtrak was a government entity for the purposes of delegation, and remanding the case for further consideration). 302 Passenger Rail Investment & Improvement Act of 2008, Pub. L. No. 110-432, § 207, 122 Stat. 4916 (2008). 303 Id. § 208(a)(1). 304 Id. § 207(a). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 49

Finally, consider International Steel. This case involved a challenge that Section 232 of the Trade Expansion Act, which permits the executive branch to adjust imports and impose tariffs if there is a danger of “impair[ing] the national security.”305 Imports and tariffs are unquestionably within Congress’s enumerated powers,306 but overseeing interactions with foreign nations and maintaining national security falls within the executive’s constitutional duties.307 This delegation therefore falls cleanly into Category Three, the category of interlocking inherent powers. Step two of the inquiry applies the Category Three test, asking whether there is: (1) a general policy goal; (2) no conflict with the delegee’s preexisting duty; and (3) adequate procedural safeguards. Under this rubric, the Trade Expansion Act qualifies as a proper delegation with ease. The required general policy statement is found twice in the statute: “to determine the effects on the national security of imports” and to “adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security.”308 Since the President’s preexisting duty is to maintain national security and the congressional delegation invites him to do just that, there is no conflict or tension between the delegation and the inherent constitutional role. Fi- nally, the Act provides adequate procedural safeguards, both by providing a list of factors the President must consider (and by which Congress can therefore monitor him) and by requiring the President to “submit to the Congress a written statement of the reasons why the President has decided to take action” within thirty days.309 As seen by the application of the Multi-Theory to these cases, reform- ing and enforcing the nondelegation delegation does not destroy the functionality of the administrative state, nor does it take a form that inevitably renders all delegations of discretion unconstitutional. Under the Theory (or a variation of it), while the broad and unchecked authority to create criminal codes in Gundy would be found too great a power to be given away, many other types of delegations remain unaffected. The Multi-The- ory thus provides a functional compromise of nondelegation concerns— permitting the delegation of limited authority and detail-filling, while simultaneously holding Congress to a higher standard by requiring

305 Am. Inst. for Int’l Steel, Inc. v. United States, 376 F. Supp. 3d 1335, 1338 (Ct. Int’l Trade 2019) (quoting 19 U.S.C. § 1862(c)(1)(A)(ii)). 306 U.S. CONST. art. I, § 8 (“The Congress shall have Power . . . [t]o regulate Commerce with foreign Nations.”). 307 See Roy E. Brownell II, The Coexistence of United States v. Curtiss-Wright and Youngstown Sheet & Tube v. Sawyer in National Security Jurisprudence, 16 J.L. & POL. 1, 17–18 (2000). 308 19 U.S.C. § 1862(b)(1)(A), (c)(1)(A)(ii). 309 Id. § 1862(c)(2), (d). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

50 George Mason Law Review [Vol. 28:1 adequate directions and safeguards to ensure that the exercise of delegated power remains subject to congressional prerogative.

B. How the Multi-Theory Differs from Other Proposals, and Addressing Criticisms

Proposals on how to reform the moribund intelligible principle standard and return to a functioning nondelegation doctrine are almost as numerous and varied as the types of delegations seen in the modern administrative state. However, most of these proposed reforms are either too strictly formalistic and ignore the realities of the administrative state, or too unimaginative and standardless and would thus result in replacing the intelligible principle with an equally useless rubric. As an example of the first alternative—the overly strict and formal- ist—Professor David Schoenbrod would insist that agencies may never create a rule that affects society, arguing that “the statute itself must speak to what people cannot do; the statute may not merely recite regulatory goals and leave it to an agency to promulgate the rules to achieve those goals.”310 Unfortunately, the time has passed when Congress might make all rules by itself and only delegate to agencies the authority to execute or interpret those rules.311 Due to the size and function of the administrative state, this view is simply impractical in the modern world and would result in the government ceasing to function.312 But while agencies must now exercise at least some authority to create rules, they should do so in con- strained settings and under the direct guidance of Congress—as required by the Multi-Theory—rather than with the unlimited discretion and nonexistent checks that permeate delegations under the intelligible principle. Conversely, other scholars argue for lax nondelegation standards, where improper delegation inquiries are applied to only a very few functions of the government313 or where improper delegation inquiries are only applied to matters of “basic importance” or “ancillary matters.”314

310 Schoenbrod, Delegation Doctrine, supra note 160, at 1227. 311 See Sean P. Sullivan, Powers, But How Much Power? Game Theory and the Nondelegation Princi- ple, 104 VA. L. REV. 1229, 1249–52 (2018) (“[A] common prodelegation consideration is the idea that Congress needs to delegate broadly if government is to keep pace with growing regulatory needs. The Supreme Court has often used practical necessity to argue for broad delegations . . . .”). 312 See, e.g., Mistretta v. United States, 488 U.S. 361, 372 (1989) (“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power . . . .”); United States v. Robel, 389 U.S. 258, 274 (1967) ( “Delegation of power . . . is an inevitable consequence of our complex society, with its myriad, ever changing, highly technical problems.”). 313 See Rappaport, supra note 243, at 265. 314 See Lawson, supra note 76, at 334. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 51

However, these proposals lead to maddeningly subjective results—who defines which functions of the government should receive the selective nondelegation application, and who determines what matters are important enough to be of “basic importance?” In contrast to these proposals, the Multi-Theory supports the proposition that all delegations of power must be measured, even if some of them undergo more severe scrutiny than others. In sum, the Multi-Theory of Nondelegation is a plausible and viable alternative method of measuring improper delegation in nondelegation cases. The Multi-Theory is nuanced but adaptable, balancing strict standards on one end of the scale with deferential inquiries at the other. Throughout all, the Multi-Theory requires reviewing courts to thoroughly examine the nature, scope, and parameters of what Congress attempts to delegate. If the Supreme Court were to adopt the Multi-Theory (or a variation of it), it would be a significant step towards balancing liberty interests, accountability, government efficacy, and the core separation of powers doctrine under a flexible but judicially enforceable theory. Before closing, it is necessary to briefly address a few of the primary criticisms which may be raised against the Multi-Theory. First, the argument that the categories created in Section II may be circumscribed by artful legislative drafting or imaginative litigation, rendering moot the carefully drawn corresponding tests.315 Second, the argument that any lack of precision in defining the categories of the Multi-Theory will lead to a forum-shopping approach of challenging delegations.316 And third, because the nondelegation doctrine at large is now enforced through an array of interpretive canons and judicial presumptions, there is no reason to resuscitate the nondelegation doctrine or replace the intelligible principle.317 The first criticism deals with artful drafting and litigating. The current state of reckless delegation exists, in part, because Congress often wishes to avoid the rigors of full bicameralism and presentment whenever creating laws and it therefore hands the duties off to another body (the

315 See, e.g., Rowinski v. Salomon Smith Barney Inc., 398 F.3d 294, 301 (3d Cir. 2005) (joining other courts in “scrutiniz[ing] the pleadings to arrive at the ‘essence’ of a [legal] claim, in order to prevent artful drafting from circumventing [the applicable inquiries]”). 316 See generally Adrian Nielson, Erie as Nondelegation, 72 OHIO ST. L.J. 239 (2011). 317 See, e.g., John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 224, 227 (2000); Nielson, supra note 316, at 267, 271, 286; Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1736, 1759 (2002); Cass R. Sunstein, Non- delegation Canons, 67 U. CHI. L. REV. 315, 321 (2000); see also Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting) (“We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.”). MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

52 George Mason Law Review [Vol. 28:1 agencies or the executive).318 There is little reason to doubt that this desire to avoid bicameralism and presentment will likely continue.319 Although the standards outlined here are based on constitutional parameters and structural divisions, Congress may still try to circumvent these standards and avoid taking legislative action by delegating authority with careful wording in the organic statutes to try to take advantage of the easier standards available.320 For example, Congress might attempt to word a statute that previously focused on regulating air quality at large (a general rule—Category One) to now accomplish the same result by delegating the power to regulate a subclass of the highest pollution producers (a limited rule—Category Two, and a more lenient standard). In much the same manner, just as every law student is told that a good lawyer can make any statute ambiguous for Chevron purposes, it is likely that talented litigators will attempt to persuasively argue that a statute under review fits into whichever category suits their need best. While such criticisms are well- founded and may arise should the Multi-Theory be adopted, they do not sink or disable the Theory. Such artful drafting and imaginative litigation might change the words of a statute, but it cannot change the core nature of the power that Congress attempts to delegate.321 The second criticism is similar to the first—that because categories can never be entirely precise, the varying standards attached to the different categories of the Multi-Theory will lead to opponents of particular policies or delegations to engage in forum shopping, searching for the best court to bring a nondelegation challenge and receive the best applicable test for their side.322 This criticism is also well-founded (considering the current nature of forum-shopping for judicial injunctions), but would be largely resolved as soon as the Supreme Court issues a few opinions describing how the categories work. The final major criticism turns on the argument that nondelegation is now enforced not through standards as in 1935 and before, but in a variety of interpretative canons, presumptions of constitutional avoidance,

318 See Douglas R. Williams, Demonstrating and Explaining Congressional Abdication: Why Does Congress Abdicate Power?, 43 ST. LOUIS L.J. 1013, 1036 (1999); see also Seila Law, L.L.C., v. CFPB, 140 S. Ct. 2183, 2212 (2020) (Thomas, J., concurring in part and dissenting in part) (“Despite the defined structural limitations of the Constitution and the clear vesting of executive power in the President, Congress has increasingly shifted executive power to a de facto fourth branch of Government—independent agencies.”). 319 See Williams, supra note 318, at 1042–43. 320 See Sullivan, supra note 311, at 1261–64. 321 See id. 322 See Nielson, supra note 316. MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

2020] Multi-Theory of Nondelegation 53 and vagueness rules.323 In light of this reality, some scholars argue, why attempt to challenge the balance by resurrecting the traditional manner of approaching nondelegation? Justice Gorsuch, in Gundy, offered the key to answering this criticism.324 Nondelegation forms the cornerstone of all other checks and restraints on the federal government, and the failure to enforce the nondelegation doctrine created a “hydraulic pressure[]” effect, which manifests in undue pressure on every other major interpretive doctrine of the Court.325 Even though these canons do function as quasi-nondelegation checks, they are poor substitutes for the true nondelegation doctrine.326

Conclusion

Justice Gorsuch’s fiery dissent in Gundy opened the door to a new era of nondelegation discussion and emphasis.327 Already, many new cases

323 See, e.g., Manning, supra note 317, at 224, 227; Nielson, supra note 316, at 286; Posner & Ver- meule, supra note 317, at 1736, 1759; Sunstein, supra note 317, at 328; see also Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting). 324 See Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting) (“[A]bdication here would be no more appropriate. To leave this aspect of the constitutional structure alone undefended would serve only to accelerate the flight of power from the legislative to the executive branch, turning the latter into a vortex of authority that was constitutionally reserved for the people’s representatives in order to protect their liberties.”). 325 Id. at 2141. 326 See David Schoenbrod, Consent of the Governed: A Constitutional Norm that the Court Should Substantially Enforce, 43 HARV. J.L. & PUB. POL’Y 213, 277 n.327 (2020). 327 See, e.g., Aditya Bamzai, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 HARV. L. REV. 164, 177 (2019); Andrew Coan, Eight Futures of the Nondelegation Doctrine, 2020 WIS. L. REV. 141, 146 (2020); Cary Coglianese, Dimensions of Delegation, 167 U. PA. L. REV. 1849, 1882 (2019); Brenner M. Fissell, When Agencies Make Criminal Law, 10 U.C. IRVINE L. REV. 855, 868–69 (2020); J. Benton Heath, From the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States, 114 NW. U. L. REV. 1723, 1741 (2020); Wayne A. Logan, Gundy v. United States: Gunning for the Administrative State, 17 OHIO ST. J. CRIM. L. 185, 196–99 (2019); Loyola, supra note 4, at 222; Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 HARV. L. REV. 852, 873 (2020); Postell, supra note 179, at 281–82; Martin H. Redish, Pragmatic Formalism, Separation of Powers, and the Need to Revisit the Nondelegation Doctrine, 51 LOY. U. CHI. L.J. 363, 382–83 (2019); Jenny Roberts, Gundy and the Civil-Criminal Divide, 17 OHIO ST. J. CRIM. L. 207, 226 (2019); Schoenbrod, Consent, supra note 326, at 228; Marla D. Tortorice, Nondelegation and the Major Ques- tions Doctrine: Displacing Interpretive Power, 67 BUFF. L. REV. 1075, 1124 n.228 (2019); Justin Walker, The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable, 95 IND. L.J. 923, 937–38 (2020); Ilan Wurman, The Specification Power, 168 U. PA. L. REV. 689, 729–32 (2020); Kayla Scott, Steel Standing: What’s Next for Section 232?, 30 DUKE J. COMP. & INT’L L. 379, 394–95 (2020); Richard Pierce, Reinvigorating the Non- Delegation Doctrine, JOTWELL (June 24, 2020), https://perma.cc/5VFK-YFWX; Jodi Short, 6 Degrees of MILNER_READY_FOR_WEB.DOCX (DO NOT DELETE) 11/29/20 11:12 PM

54 George Mason Law Review [Vol. 28:1 questioning the validity of congressional delegations are working through the federal judiciary.328 Soon, the Supreme Court will again wrestle with the question of separation of powers and impermissible delegation, and it will be forced to decide whether the toothless paper tiger of the intelligible principle standard should be replaced. The nondelegation doctrine stands at the core of the Constitution’s separation of powers jurisprudence, enforcing the checks between branches of government. Enforcing the nondelegation doctrine protects individual liberties, prevents the accumulation of power that leads to tyranny, improves the accountability of the federal government to the sovereign people, and limits the promulgation of a deluge of executive-created laws. While the intelligible principle was originally designed to provide sufficient guidelines to enforce the doctrine, over the past eighty years it has crumbled away to the point that it now fully permits Congress to “avoid [the] hard choices” and abdicate the duty owed to the sovereign people.329 Although the creation of a new, judicially enforceable rubric for nondelegation will not be easy, this inconvenience does not mean that the Supreme Court may shy away from tackling the difficult questions and enforcing the Constitution’s checks on delegation. The Multi-Theory of Nondelegation provides a blueprint of how to develop a new standard, with distinct categories and tests to more closely guard against improper delegations. It both adheres closely to the traditional constitutional pro- hibitions against delegated authority while simultaneously providing agencies and other delegees enough autonomy to ensure the continued functioning of the modern federal government.

Delegation, JOTWELL (June 24, 2020), https://perma.cc/A9RE-VNA7; Adam J. White, Democracy, Dele- gation, and Distrust, HOOVER INST. (March 12, 2019), https://perma.cc/H3VD-KU3H. 328 See, e.g., Doe v. Trump, 418 F. Supp. 3d 573, 589–90 (D. Or. 2019) (finding the delegation of immigration suspension authority in 8 U.S.C. § 1182(a) to be without an intelligible principle), stay denied, 957 F.3d 1050 (9th Cir. 2020). Many commenters believed that the question of section 232 delegation in International Steel would be the vehicle for reexamining the nondelegation doctrine by the full Supreme Court. See, e.g., Scott, supra note 327, at 395–96; Peter Hayes, Federal Circuit Upholds Steel Tariff, SCOTUS Bid Likely, BLOOMBERG LAW (Feb. 28, 2020), https://perma.cc/L252-5AMN; Todd N. Tucker, New Challenge to Trump’s National Security Tariffs and Executive Power, LAWFARE (July 5, 2018), https://perma.cc/6GHA-A32W. However, the Supreme Court denied certiorari for the case in June of 2020, prolonging the wait for the next nondelegation case. See Am. Inst. for Int’l Steel, Inc. v. United States, No. 19-1177, 2020 WL 3405872 (June 22, 2020). 329 Schoenbrod, Delegation Doctrine, supra note 160, at 1225.