The Nondelegation Doctrine As a Canon of Avoidance Author(S): John F

The Nondelegation Doctrine as a Canon of Avoidance Author(s): John F. Manning Source: The Supreme Court Review, Vol. 2000 (2000), pp. 223-277 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/3109680 . Accessed: 21/10/2014 12:35

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This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions JOHN F. MANNING

THE NONDELEGATION DOCTRINE

AS A CANON OF AVOIDANCE

The SupremeCourt has oftendeclared that Congress cannot val- idlydelegate its legislativeauthority to the executive.1Rather than overturningadministrative statutes on that ground,however, the Court has long enforcedthe nondelegationdoctrine by narrowly construingadministrative statutes that otherwiserisk conferring unconstitutionallyexcessive agency discretion.2 The nondelegation doctrine,in other words, now operates exclusivelythrough the interpretivecanon requiringavoidance of serious constitutional questions.This resultis oftenhailed as a successfulway to recon- cile severalcompeting concerns.3 First, the Court recognizesthat the nondelegationdoctrine serves important constitutional interests, includingthe promotionof legislativeresponsibility for society's basic policy choices4and the preservationof a carefully

JohnManning is Michael I. Sovern Professorof Law, Columbia University. AUTHOR'S NOTE: I am gratefulto Brad Clark,Debra Livingston,William Kelley,Henry Monaghan,Peter Strauss,and AdrianVermeule for insightful comments on an earlierdraft. I thankKeith Levenbergfor excellentresearch assistance. 1See, for example,Mistretta v UnitedStates, 488 US 361, 371-72 (1988) ("[W]e long have insistedthat 'the integrityand maintenanceof the systemof governmentordained by the Constitution'mandate that Congress generally cannot delegate its legislativepower to anotherBranch.") (quotingMarshall Field & Co. v Clark,143 US 649, 692 (1892)). 2 See Mistretta,488 US at 373 n 7 ("In recentyears, our applicationof the nondelegation doctrineprincipally has been limitedto the interpretationof statutorytexts, and, more particularly,to givingnarrow constructions to statutorydelegations that might otherwise be thoughtto be unconstitutional."). 3See textaccompanying notes 99-105.

4 US Const,Art I, ? 1 ("All legislativePowers herein granted shall be vestedin a Congress of the United States see, for v UnitedStates, 517 US 758 .... ."); example,Loving 748, (1996); Toubyv UnitedStates, 500 US 160, 164-65 (1991).

? 2001 by The Universityof Chicago. All rightsreserved. 0-226-36249-3/2001/2000-0006$02.00 223

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 224 THE SUPREME COURT REVIEW [2000 designedconstitutional process for legislation-bicameralism and presentment.5Second, the Court fearsthat aggressive enforcement of the nondelegationdoctrine would rendermodern government unworkable.6And third,it lacks confidencein its abilityto make principledjudgments about excessivedelegations in the exerciseof Marbury-stylejudicial review.7 Narrow construction tries to secure the best of all worlds-promotingthe interestsserved by the nondelegationdoctrine, while avoiding many of the practicalconcerns raised by directenforcement. Last Term's decision in FDA v Brown& WilliamsonTobacco Corp.8implemented this "narrow constructionstrategy" in rejecting the FDA's assertionof jurisdictionof tobacco under the broad termsof theFood, Drug, and CosmeticAct (FDCA or Act).9 The decision,as I explainbelow, is noteworthybecause it offersa clear exampleof the narrowconstruction strategy-and an equally strikingillustration of its conceptualweaknesses. In particular,the Court's opinion gives sharpfocus to the followingcontradiction: If the nondelegationdoctrine seeks to promotelegislative responsibilityfor policy choices and to safeguardthe processof bicameralism and presentment,it is odd forthe judiciaryto implementit througha techniquethat asserts the prerogativeto altera statute's conventionalmeaning and, in so doing, to disturbthe apparent lines of compromiseproduced by the legislativeprocess. Brown& Williamson'sfacts are complex,but forpresent purposes theycan be readilysimplified. After a notice and commentperiod that generatedmore than 700,000 comments,10the FDA determinedthat the nicotinein tobacco constituteda "drug" subjectto theagency's regulatory jurisdiction under the FDCA." The agency rested its determinationon the statute'sexplicit definitionof "drug," which broadlyextends to "articles(other than food) in-

I US Const, Art I, ? 7 (requiringbicameralism and presentment);see also, forexample, Loving,517 US at 757-58; Cass R. Sunstein,Nondelegation Canons, 67 U Chi L Rev 315, 319-20 (2000). 6 See textaccompanying notes 93-95. 7 See textaccompanying notes 96-98. 8 529 US 120 (2000). 9 52 Stat 1040 (1938), codifiedas amended,21 USC ? 301 et seq (1994). 10Regulations Restricting the Sale and Distributionof Cigarettesand SmokelessTobacco to ProtectChildren and Adolescents,61 Fed Reg 44396, 44418, 44655 (1996). 1 Id at 44628-50 (analyzingevidence collected in notice and commentperiod).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 225 tendedto affectthe structure or anyfunction of the body."12 No doubtbecause of the importance ofthe question, or becausethe agencyhad previouslyasserted that it lackedjurisdiction over tobacco,the FDA supportedits new position with an unusually detailedfactual, policy, and legalanalysis, including a separate "annex"on jurisdiction that occupied almost 700 pages in the Fed- eralRegister.13 In anextraordinary opinion, the Court rejected the FDA's assertionof jurisdiction on statutorygrounds, but without ever inter- pretingthe FDCA's operative language. Despite the statute's evi- dentsweep, moreover, the Court declined to invokeChevron's establishedcanon that a reviewingcourt must accept an agency's "reasonable"interpretation ofa broad or open-ended organic statute.14In placeof such analysis, the Court instead determined that "theFDA's claimto jurisdictioncontravenes the clear intent of Congress.""15The Courtreasoned that if tobacco is a "drug,"the FDA wouldhave to banit outrightunder various provisions of theAct."6 Yet Congresscould not possiblyhave intended such a result,given its passage of several post-FDCA statutes that regulate butdo notban tobacco.17 The Courtalso emphasized that when Congresspassed the post-FDCA tobacco statutes, itdid so against a backdropof committee hearings that included repeated executive branchdisclaimers of FDA jurisdiction.'8In view of thislegislative history,the Court foundthat the post-FDCA legislationreflected a legislativeintent to ratifythe FDA's jurisdictionaldisclaimers, elevatingthat administrative understanding to the statusof statute law." Finally,the Court foundthat Congress's articulation of spe- cificregulatory policies fortobacco in the post-FDCA legislation precludedthe FDA fromimposing further regulations under the FDCA's more generalauthority; by strikinga specificpolicy bal-

12 21 USC ? 321(g)(1)(C) (1994). 13 See 61 Fed Reg 44396 (cited in note 10); id at 44619 (jurisdictionalannex). 14 Brown& Williamson,529 US at 132-33; see also ChevronUSA, Inc. v NRDC, Inc.,467 US 837, 844 (1984). "1Brown & Williamson,529 US at 132. 16Id at 133-43. 17Id at 137-39. '~ Id at 143-56. 9 Id at 155-56.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 226 THE SUPREME COURT REVIEW [2000 ance, Congress spoke directlyto the precise question of appro- priatetobacco regulation.20 If Brown& Williamsonwere viewedas a straightforwardmatter of statutoryinterpretation, much of its reasoningwould be puz- zling. For a Court that has become increasinglytextualist in its orientationto statutes,21its heavyreliance on postenactmentlegislative history,in particular,seems out of character.Indeed, this use of legislativehistory is particularlystriking when one considers thattwo of the fiveJustices in majority(Scalia and Thomas) are the Court's most committedtextualists,22 and the other three (Rehnquist,O'Connor, and Kennedy)have at least expressedsym- pathywith textualism.23 While one mighttherefore be temptedto

20 Id at 143-44. 21The currentCourt more oftenstresses the public meaningof an enacted text,rather than inferencesof intentor purposethat might be extractedfrom legislative history. See, for example,Hans Baade, Time and Meaning:Notes on theIntertemporal Law of Statutory Construction,43 Am J Comp L 319, 324 (1995); GregoryE. Maggs, The SecretDecline of LegislativeHistory: Has SomeoneHeard a VoiceCrying in theWilderness? 1994 Pub Int L Rev 57, 58; RichardJ. Pierce, Jr., The SupremeCourt's New Hypertextualism:An Invitationto Cacophonyand Incoherencein theAdministrative State, 95 Colum L Rev 749 (1995); Peter L. Strauss,On Resegregatingthe Worlds of Statute and CommonLaw, 1994 SupremeCourt Re- view 429; SamuelA. Thumma and JeffreyL. Kirchmeier,The Lexicon Has Becomea Fortress: The UnitedStates Supreme Court's Use of Dictionaries,47 BuffL Rev 227, 252-60 (1999). Textualiststypically cite several related grounds for excluding legislative history from statutoryinterpretation: legislative history is unenacted;a multimemberlegislature does not have any actual intenton mattersthat it has not clearlyexpressed; and even if it did, judges cannotknow whether a constitutionallysufficient proportion of legislatorsread or agreed with the legislativehistory. See John F. Manning,Textualism as a NondelegationDoctrine, 97 Colum L Rev 673, 684-89, 697 (1997) (discussingtenets of textualism). 22 See, forexample, Bank American Trust & Say Ass'nv 203 NorthLasalle Street Partnership, 526 US 434 462 (1999) (Thomas, joined by Scalia, concurringin the judgment)(noting that the legislativehistory "is irrelevantfor the simplereason that Congress enacted the Code, not the legislativehistory predating it"); see also, for example,Thomas Merrill, Textualismand theFuture of the Chevron Doctrine, 72 Wash U L Q 351, 351 (1994); Michael P. Van Alstine,Dynamic Treaty Interpretation, 146 U Pa L Rev 687, 717 (1998). 23 See, for example,Atherton v FDIC, 519 US 213, 231 (1997) (O'Connor, joined by Scalia and Thomas, concurringin partand concurringin the judgment)("I join all of the Court's opinion,except to the extentthat it relieson the notablyunhelpful legislative his- toryto 12 U.S.C. 1821(k)."); PublicCitizen v US Dep't ofJustice, 491 US 440, 471 (1989) (Kennedy,joined by Rehnquistand O'Connor, concurringin the judgment)("Where it is clear thatthe unambiguouslanguage of a statuteembraces certain conduct, and it would not be patentlyabsurd to applythe statuteto such conduct,it does not fostera democratic exegesisfor this Court to rummagethrough unauthoritative materials to consultthe spirit of the legislationin orderto discoveran alternativeinterpretation of the statutewith which the Court is morecomfortable."); Patricia M. Wald, TheSizzling Sleeper: The UseofLegisla- tiveHistory in ConstruingStatutes in the1988-89 Termof the UnitedStates Supreme Court, 39 Am U L Rev 277, 306 (1990) (arguingthat Justices Scalia and Kennedy are strong textualistsand that ChiefJustice Rehnquist and JusticeO'Connor occasionallybehave as textualists).For a contraryview of the jurisprudenceof ChiefJustice Rehnquist and Justice

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 227 view Brown& Williamsonas being simplyan idiosyncraticdepar- ture fromthe Court's usual assumptions,its reasoningis better understoodin lightof whatseemed to be the Court'sbroader concern-that the statutebe interpretedto avoid significantnondele- gationconcerns that would resultfrom a conventionalreading of its open-endedterms.24 Although the Court did not explicitlyin- voke the nondelegationdoctrine as such, portionsof its opinion clearlyreflect significant nondelegation concerns. Because theFDA had asserted"jurisdiction to regulatean industryconstituting a significantportion of theAmerican economy," the Court emphasized thatthis was not "an ordinarycase" of statutoryinterpretation.25 More specifically,the Court made clear that its interpretive methodwas "guided by commonsense as to the mannerin which Congress is likelyto delegate a policy decision of such political and economicmagnitude to an administrativeagency."26 In short, consistentwith its approachin manyother cases, the Court's narrow constructionof the FDCA reflectedan evidentdesire to avoid otherwiseserious nondelegation concerns.27

Kennedy,see Charles Tiefer, The Reconceptualizationof Legislative History in theSupreme Court,2000 Wis L Rev 205, 248. 24 ViewingBrown & Williamsonas a mere departurefrom standard practice, the Court's strongreliance on legislativehistory may bear resemblanceto Churchof the Holy Trinity v UnitedStates, 143 US 457, 459 (1892), whichheld that "a thingmay be withinthe letter of the statuteand yet not withinthe statute,because not withinits spiritnor withinthe intentionof its makers."Even if this characterizationof the majorityopinion is correct, however,it is stillnecessary to explainwhy the Court chose to invokeHoly Trinityhere, given its increasingreluctance, as of late, to rely on Holy Trinity'satextual and strongly purposivetechnique. See John F. Manning, Textualismand theEquity of the Statute,101 Colum L Rev 1, 21-22 (2001) (describingthe Court'srecent approach to statutoryinterpretation).As discussedin the text,given the Brown& WilliamsonCourt's repeatedarticulation of nondelegationconcerns, it is reasonableto assume thatsuch concerns-ratherthan an aberrationalabandonment of textualism-explainthe Court's approach. 25Brown & Williamson,529 US at 159. 26Id at 133. In this regard,it is worthnoting that the Court's nondelegationconcerns relatedto the scope of the administrativeauthority that the FDCA would conferover the U.S. economy,rather than an absence of standardsto guide such authority.Although this is not the paradigmaticbasis forinvoking the nondelegation doctrine, it nonethelessreflects an importantelement in the Court's nondelegationcase law. See, for example,Industrial UnionDepartment, AFL-CIO v AmericanPetroleum Institute, 448 US 607, 645-46 (1980) (plurality)(noting that serious delegationconcerns would be raised if the Occupational Safetyand Health Actwere construed to givethe Secretaryof Labor "unprecedentedpower over Americanindustry"); Wayman v Southard,23 US 1, 23 (1825) (suggestingthat Con- gressmay not delegateauthority over "importantsubjects" but can do so withrespect to "those of less interest"). 27Brown & Williamson,529 US at 133-34; see textaccompanying notes 75-78.

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This articlecontends that, contrary to the Court's assumptions, enforcingthe nondelegationdoctrine through the canon of avoidance undermines,rather than furthers,the constitutionalaims of thatdoctrine. In particular,the Court typicallynarrows constitu- tionallydoubtful delegations by restrictinga broad statutein light of an imputedbackground purpose. Narrowing a statutein this way,however, threatens to unsettlethe legislativechoice implicit in adoptinga broadlyworded statute. Much legislationreflects the fruitsof legislativecompromise, and such compromisesoften lead to thearticulation of broadpolicies for agencies and courtsto spec- ifythrough application. For thatreason, the Court has recognized that,if "faithfulagent" theoriesof statutoryinterpretation are to be given effect,the statutorytext may well transcendthe precise purposesthat inspired it and thatthe judiciarymust respect Con- gress'schoice to legislatein open-endedterms. By artificiallynar- rowingan open-endedstatute to its backgroundpurpose, decisions like Brown& Williamsonupset the termsof such a legislativecompromise.If the point of the nondelegationdoctrine is to ensure thatCongress makes important statutory policy, a strategythat requiresthe judiciary, in effect,to rewritethe terms of a dulyenacted statutecannot be said to servethe interestsof that doctrine. Part I framesthe issuesby describingBrown & Williamson'sreasoning.Part II discussesthe Court's modernuse of the canon of avoidanceto vindicatenondelegation values. In addition,it exam- ines theways in whichthis practice of avoidanceultimately undermines the interestsserved by the nondelegationdoctrine. Finally, Part III uses Brown& Williamson'sreliance on post enactmentleg- islativehistory to illustratethe contradiction implicit in theCourt's nondelegationstrategy. Part III also suggeststhat a distinctaspect of the Court's decision-which construesthe FDA's broad grant of authorityin lightof the more specificprovisions of post-FDCA legislation-may offera promisingalternative for promoting the aims of the nondelegationdoctrine.

I. BROWN & WILLIAMSON ELABORATED

In determiningthe scope of the FDA's authority,the Court in Brown & Williamsoneschewed analysisof the FDCA's text. Instead, much of the Court's opinion attemptedto narrowthe FDCA's broad termsin lightof imputedlegislative intent, largely

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derivedfrom postenactment legislative history. Because thatstrategy reflectsan unconventionalmethod of statutoryinterpretation, particularlyfor the currentCourt, it may reflectthe Court's evidentdesire to narrowan otherwisequestionable delegation of legislativeauthority. This part firstdescribes the FDA's decision to extendits jurisdictionto tobacco; it thendiscusses the Court's rejection of thatdecision.28

A. THE FDA'S ASSERTION OF JURISDICTION The FDCA grantsthe FDA authorityto regulate(as a "drug") any "article[] (otherthan food) intendedto affectthe structureor any functionof the body of man or animal."29For manyyears, the FDA assertedthat it generallylacked jurisdiction over tobacco, reasoningthat tobacco did not satisfythe "intent"requirement unless manufacturersmade expressclaims of therapeuticvalue.30 In 1995, however,the agencyinvited public commenton a pro- posal to reconsiderthat position.31After receiving more than 700,000 comments(the most ever submittedto the FDA), the agencyfound that scientific evidence indicated that nicotine in tobacco "affectsthe structureor any functionof the body"32 and thatthe tobacco manufacturers'conduct, in context,demonstrated that those companies"intended" such effects.33 First,the agencyconcluded that nicotine has "significantphar-

28 I do not attempthere to addressthe questionwhether tobacco, in fact,falls within the FDCA's definitionof a "drug," a matterthat othershave ably considered.Compare, for example,Richard A. Merrill,The FDA May Not RegulateTobacco Products as "Drugs" or "MedicalDevices," 47 Duke L J 1071 (1998), withCass R. Sunstein,Is Tobaccoa Drug? 47 Duke L J 1013, 1034 (1998). Rather,my objective is merelyto supplythe contextnecessary to examinethe Court's nondelegationstrategy, as well as the limitationsof thatstrategy. 2921 USC ? 321(g)(1)(C) (1994). 30 See, for example,Action on Smoking& Healthv Harris,655 F2d 236 (DC Cir 1980) (affirmingFDA's denial of petitionto assertjurisdiction over tobacco); U.S. v 354 Bulk * * Cartons * TrimReducing-Aid Cigarettes, 178 F Supp 847 (DNJ 1959) (sustainingFDA jurisdictionwhere cigaretteswere marketedas weightreduction aids); U.S. v 46 Cartons, More or Less,Containing Fairfax Cigarettes, 113 F Supp 336 (DNJ 1953) (assertingjurisdic- tion wherea particularbrand was marketedas effectivefor reducing respiratory and other ailments).

31 See RegulationsRestricting the Sale and Distributionof Cigarettesand SmokelessTo- bacco Productsto ProtectChildren and Adolescents,60 Fed Reg 41314, 41341 (1995) (notice of proposedrulemaking). 32 61 Fed Reg at 44664-85 (cited in note 10). 33Id at 44686-45204.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 230 THE SUPREME COURT REVIEW [2000 macologicaleffects.""34 In particular,the agencyfound that it (a) "causes and sustainsaddiction," (b) produces"sedating or tranquil- izing effect[s]"in some circumstances,(c) induces"a stimulantor arousal-increasingeffect" in othercontexts, and (d) "affectsbody weight."35In fact,the pharmacologicaleffects of nicotinein cigarettes and smokeless tobacco greatlyexceed those of nicotine productsalready regulated by the agency,such as the transdermal patch,nicotine gum, nicotine inhalers, and nicotinepaper.36 The FDA also foundthat "the powerfulpsychoactive effects produced by nicotinein cigarettesand smokelesstobacco are comparableto those produced by tranquilizers,stimulants, weight management agents,and drugsused forlong-term maintenance of addiction,all of whichare indisputablywithin FDA's jurisdiction."' Second, and more importantgiven the agency'sprevious position, the FDA cited severalfactors that, in its view, cumulatively supporteda findingthat tobacco manufacturers"intended" those effects.The agencyfound that nicotine's addictive, mood-altering, and weight-reducingeffects were so widelyrecognized that any reasonablemanufacturer would foresee that consumers use tobacco to satisfytheir addiction or to produce the anticipatedeffects.38 Because the law conventionallyassumes that personsintend the naturaland probableconsequences of theiractions, the FDA reasoned, such foreseeabilitysatisfied the intentrequirement.39 The agencyalso concludedthat "consumers actually use cigarettesand

34Id at 44651. 35Id at 44631-32. 36 Id at 44665.

37Id at 44673. 38 See id at 44634-35, 44698-744. 39 See id at 44633: When Congress enacted the currentdefinition of "drug" in 1938, it was well understoodthat "[t]he law presumesthat every man intendsthe legitimateconse- quences of his own acts." Agnewv United States,165 U.S. 36, 53 (1897). Consis- tentwith this common understanding, FDA's regulationsprovide that a product's intendedpharmacological use may be establishedby evidencethat the manufacturer"knows, or has knowledgeof factsthat would give him notice," that the productis being widelyused for a pharmacologicalpurpose, even if the product is not being promotedfor this purpose. 21 CFR 201.128, 801.4. Thus, FDA may findthat a manufacturerintends its productto affectthe structureor functionof the bodywhen it would be foreseeableto a reasonablemanufacturer that the product will (1) affectthe structureor functionof the body and (2) be used by a substantialproportion of consumersto obtain these effects.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 231 smokelesstobacco predominantlyto obtain the pharmacological effectsof nicotine,"40a furtherindicium of "intended"effect. Fi- nally, the agency relied on tobacco companies' statements,research,and actionsindicating that they have long knownthat consumersuse tobacco for its pharmacologicaleffects and that they designedcigarettes with those effectsin mind.41Invoking the "or- dinarymeaning" of "intend,"the agencyconcluded that this evidence satisfiedthe FDCA's intentrequirement.42 Because nicotinewas a "drug,"the agency could treatthe means of deliveringit-cigarettes and smokelesstobacco-as "drug de- liverydevices" withinthe meaningof the FDCA.43 This conclusion,in turn,allowed the FDA to invokea statutoryprovision that required"a device [to] be restrictedto sale, distribution,or use ... upon such ... conditionsas [the FDA] may prescribe. .. if, because of its potentialityfor harmful effect or the collateralmea- suresnecessary to its use, [theFDA] determinesthat there cannot otherwisebe reasonableassurance of its safetyand effectiveness."44

4 Id at 44636; see also id at 44635-36, 44807-46. For example,the agencycited major recentstudies concluding "that 77% to 92% of smokersare addictedto nicotinein cigarettes."Id at 44635. Other surveys,moreover, found that "over 70% of youngpeople 10 to 22 yearsold who are dailysmokers reported that they use cigarettesfor relaxation," and "that between one-thirdand one-halfof young smokersreport that weightcontrol is a reason fortheir smoking." Id at 44636. 41See id at 44847-45097. Specifically,the agencyrelied on evidencethat manufacturers "have knownfor decades" that nicotinehas significantpharmacological effects and that "consumersuse cigarettesprimarily to obtain the pharmacologicaleffects of nicotine,includingthe satisfactionof theiraddition." Id at 44849. It also citedevidence that the manufacturers"have 'designed'cigarettes to providepharmacologically active doses of nicotine to consumers,"in partby conducting"extensive product research and developmentto establishthe dose of nicotinenecessary to produce pharmacologicaleffects and to optimize the deliveryof nicotineto consumers."Id at 44850. The agencyfound similar evidence for smokelesstobacco products.See id at 44643. 42 See id at 44851 & n 413 (citingThe American Heritage Dictionary of the English Language 668 (Houghton Mifflin,1991) (defining"intend" to include "1. To have in mind; plan. 2.a. To designfor a specificpurpose. b. To have in mind fora particularuse . . . .")).

43 Id at 44397. The Act definesa "device,"in relevantpart, as "an instrument,apparatus, implement,machine, contrivance, ... or othersimilar or relatedarticle, ... whichis ... intendedto affectthe structureor anyfunction of thebody." 21 USC ? 321(h) (1994). More precisely,the FDA determinedthat cigarettesand smokelesstobacco were "combination products,"which the Act definesas a "combinationof a drug,device, or biologicproduct." 21 USC ? 353(g)(1) (1994). The agencyconcluded, however, that it could regulatecombina- tion productsas drugs,devices, or both,depending on "how the publichealth goals of the act can be best accomplished."61 Fed Reg at 44403 (cited in note 10). Because of the greaterflexibility of the FDCA's provisionsgoverning devices, the FDA chose to regulate cigarettesand smokelesstobacco as "devices." Brown& Williamson,529 US at 129. 4421 USC ? 360j(e) (1994).

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The FDA invokedthat authority on the groundthat tobacco use "was the singleleading cause of preventabledeath in the United States" and that"[m]ore than400,000 people die each year from tobacco-relatedillnesses."45 Finding that such illnessescould be reducedonly by addressingaddiction and that"anyone who does not begin smokingin childhoodand adolescenceis unlikelyever to begin,"46the agencypromulgated regulations specifically aimed at preventingchildren and adolescentsfrom starting to smoke.47 The regulations,for example,prohibited the sale of tobacco to personsunder 18 years of age, requiredphoto identificationfor sales to personsunder 27, and prohibitedselling tobacco through self-servicedisplays or vendingmachines, except in adult-onlylo- cations.48The new regulationsalso imposedsignificant restrictions on tobacco advertisingand promotion.49The FDA specifically concluded"that without the access and advertisingrestrictions imposed in thisfinal rule, no findingthat there is a reasonableassurance of safetyfor cigarettesand smokeless tobacco would be possible."'s

B. THE COURT'S SEARCH FOR LEGISLATIVE INTENT Initially,the FDA's interpretationseemed to presenta straight- forwardapplication of Chevron'sfamiliar framework for judicial review." With respectto an agency-administeredstatute such as the FDCA, a reviewingcourt asks first whether Congress has "directly spokento the precisequestion at issue."52If so, principlesof legislative supremacycompel the court and agency alike to respect Congress's clear instructions."s3If, however,the statuteis "silent

4561 Fed Reg at 44398 (cited in note 10). 46 Id at 44398-99. 47Id at 44615-18. 4 Id at 44616-17. 49For example,the regulationsrequired advertisements to appearin black-and-whiteand text-onlyformats, except in adult-onlypublications and facilities.See id at 44617. In addition, theybanned outdoor advertisingwithin 1,000 feetof schools and playgrounds,the distributionof variouspromotional products bearing a tobacco brand name or logo, and sponsorshipin the tobacco company'sname of any "athletic,musical, artistic, or other social or culturalevent." Id at 44617-18. 5 Id at 44407. 51 See ChevronUSA, Inc. v NRDC, Inc.,467 US 837 (1984). 52 Id at 842. s3Id at 842-43.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 233 or ambiguous"regarding an interpretivequestion, the reviewing courtmust accept the agency'sinterpretation, ifthat interpretation is "reasonable."54 In such instances,the Court emphasizesthat the choice amongreasonable alternative interpretations entails the exerciseof policy-makingdiscretion.ss Because such discretionmore appropriatelylies withrelatively accountable administrators, rather than relativelyunaccountable judges, the Court treatssilence or ambiguityin an administrativestatute as an implicitdelegation of law elaborationauthority to the agency.56 Given the breadthof the FDCA's text,one mighthave thought that the FDA's decision to regulatetobacco would be a serious candidatefor Chevron deference.57 The FDA's findingsmade plain thatnicotine "affect[s] the structureor any functionof the human body,"and its understandingof "intent"reflected at least a plausible interpretationof thatterm."58 The Brown& WilliamsonCourt, however,flatly rejected the FDA's interpretationwithout ever con- sideringthe meaningor scope of the FDCA's operativeterms. Al- thoughmuch disagreementsurrounds Chevron's precise applica-

54Id at 843-44. 55See Lawrence Lessig, UnderstandingChanged Readings: Fidelity and Theory,47 Stan L Rev 395, 436-37 (1995); JohnF. Manning,Constitutional Structure and Judicial Deference to AgencyInterpretations ofAgency Rules, 97 Colum L Rev 612, 625 (1996). 56 See Chevron,467 US at 865-66: Judges... are not part of eitherpolitical branch of the Government.....While agencies are not directlyaccountable to the people, the Chief Executiveis, and it is entirelyappropriate for this politicalbranch of the Governmentto make ... policychoices-resolving the competinginterests which Congress itself either inadvertentlydid not resolve,or intentionallyleft to be resolvedby the agency chargedwith the administrationof the statutein lightof everydayrealities. 57See, forexample, Babbitt v SweetHome Chapter of Communities for a GreaterOregon, 515 US 687, 707 (1991) ("When Congresshas entrustedthe Secretarywith broad discretion, we are especiallyreluctant to substituteour views of wise policyfor his."); Norfolk& Western Ry Co. v AmericanTrain Dispatchers'Ass'n, 491 US 117, 218 (1991) (notingthat Chevron deferenceis warrantedwhere the statutorylanguage is "clear, broad, and unqualified"). 58The meaningof theterm "intended" represented the only serious interpretive question. The evidence,however, clearly showed the tobacco companies' knowledgeof nicotine's physicaleffects, and the law traditionallypresumes that persons intendthe naturaland probable consequencesof theiracts. Althoughthe agencyhad changed its interpretation of "intent"in promulgatingits recentregulations, Chevron makes clear thatsuch changes are permissiblein cases of ambiguity,provided that the agencyhas adequatelyexplained its change of position.See Smileyv Citibank(South Dakota), NA, 517 US 735, 742 (1996); Chevron,467 US at 863. In addition,although the tobacco manufacturersargued that "intent,"as used in the FDCA, was a termof art requiringcompanies to make expressrepre- sentationsof therapeuticeffect, see, forexample, Brief of RespondentBrown & Williamson Tobacco Corp. 6-28, FDA v Brown& WilliamsonTobacco Corp., 529 US 120 (2000), the Court did not relyon or even addressthat premise in determiningthe scope of the FDCA.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 234 THE SUPREME COURT REVIEW [2000 tion,59the meaning of the statutorytext is always a threshold question in determiningthe scope of agencypower, particularly since the "new textualism"gained influencewith (at least some of) theJustices in the 1980s.60Brown & Williamson,however, simply assumed arguendo that tobacco could satisfythe statutory definitionand proceeded to determinecongressional "intent" on the coverage of tobacco.61Perhaps most strikingly,the Court foundthat Congresshad spokento the precisequestion at issue, not on the basis of the FDCA, but on the basis of implied "intent" fromlegislative acts occurringdecades afterthe FDCA's enactment. First, the Court adopted a strongpresumption of coherence amongstatutes passed overtime; specifically, it reasonedthat reading the FDCA's broad termsto cover tobacco would renderthat statuteincoherent with subsequentlyenacted statutesthat regu- latedtobacco in targetedways. The Courtexplained that if tobacco qualifiedas a "drug,"the FDA would have to ban it undervarious provisionsof the FDCA.62A totalban, however, "would contradict

59See, forexample, Clark Byse,Judicial Review of Administrative Interpretation ofStatutes: An Analysisof Chevron's Step Two, 2 AdminL J 255 (1988); Peter L. Strauss,When the Judge Is Not thePrimary Oficial with the Responsibility toRead: Agency Interpretation and theProblem ofLegislative History, 66 Chi Kent L Rev 321 (1990); Cass R. Sunstein,Law andAdministra- tionAfter Chevron 90 Colum L Rev 2071 (1990). 60 See, forexample, National R. PassengerCorp. v Boston& Maine Corp.,503 US 407, 417 (1993) ("If the agencyinterpretation is not in conflictwith the plain languageof the statute, deferenceis due. In ascertainingwhether the agency'sinterpretation is a permissiblecon- structionof the language,a courtmust look to the structureand language of the statute as a whole.") (citationomitted); K-Mart Corp.v Cartier,Inc., 486 US 281, 292 (1987) ("If the agencyregulation is not in conflictwith the plain languageof the statute,a reviewing courtmust give deferenceto the agency'sinterpretation of the statute."). 61Brown & Williamson,529 US at 132. 62 In brief,the Court reasonedthat the FDA's missionis to ensurethat regulated products are "'safe' and 'effective.'"Id at 133 (quoting21 USC ? 393(b)(2) (1994)). That objective, the Court explained,"pervades the FDCA" and is centralto the veryprovision on which the agencybased its tobacco regulations.Id; see id at 134 ("Even the 'restricteddevice' provisionpursuant to whichthe FDA promulgatedthe regulationsat issue here authorizes the agencyto place conditionson the sale or distributionof a devicespecifically when 'there cannototherwise be reasonableassurance of its safetyand effectiveness.'") (quoting21 USC ? 360j(e) (1994)). The Court also relied on the FDCA's provisionsgoverning misbranded drugs.Because tobaccowould be "'dangerousto healthwhen used in the dosage or manner, or withthe frequencyor durationprescribed, recommended, or suggestedin the labeling thereof,'" the Court foundthat they would be "misbranded"within the meaningof the Act.Id at 135 (quoting21 USC ? 352(j) (1994)). Tobacco would also be misbrandedbecause the tobacco companieswould not be able to provide"'adequate directionsfor use . . . in such mannerand form,as are necessaryfor the protectionof users.'" Id (quoting21 USC ? 352(f)(1) (1994)). Finally,the Court concludedthat the FDA would have to classifyciga- rettesand smokelesstobacco in a categorythat would requirepremarketing approval. See

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 235

Congress's clear intentas expressedin its more recent,tobacco- specificlegislation."63 Since 1965,Congress has enactedsix specific statutesaddressing tobacco." And,the Court noted,while the ad- versehealth effects of tobaccowere widelyknown when Congress passed these regulatorystatutes, Congress always "stopped well shortof orderinga ban."65Moreover, because Congress enacted certainlabeling requirementswith the expresspurpose of pro- tectingcommerce "'to the maximumextent consistent with' " giv- ing consumersadequate information about tobacco's health effects, the Court inferreda legislative"intent that tobacco productsstay on the market."66 Second, the Court appliedstrongly purposive interpretive tech- niques to narrowthe FDCA. Based upon the legislativehistory accompanyingthe later tobacco statutes,it concluded that Con- gresshad ratifiedthe FDA's priorassumption that tobacco fell out- id at 136; see also 21 USC ? 360(a) (1994); id ? 360c(a)(1)(C) (1994); id ? 360e (1994). In thatcontext, the agencywould have to deny approval,absent "'reasonable assurancethat such device is safeunder the conditionsof use prescribed,recommended or suggestedon thelabeling thereof.' " Brown& Williamson,529 US at 136 (quoting21 USC ? 360e(d)(2)(A) (1994)). The dissentargued that the statutegives the FDA greaterdiscretion than the Court suggested.See id at 173-79 (Breyerdissenting). In addition,the FDA had specificallycon- cludedthat a totalban would not promotethe Act's objectives; specifically, it wouldproduce adversenet healtheffects by producingsevere withdrawal symptoms and creatinga black marketfor potentiallymore dangeroustobacco products.60 Fed Reg at 44398, 44405, 44413 (citedin note 31). Based on those findings,the dissentconcluded that the FDA had authorityto forgoa complete ban based on statutoryauthority to considercomparative healtheffects in craftingits regulations.See Brown& Williamson,529 US at 177 (Breyer dissenting)("[S]urely the agencycan determinethat a productis comparatively'safe' (not 'dangerous')whenever it would be lessdangerous to make the productavailable (subject to regulatoryrequirements) than suddenlyto withdrawit fromthe market.. . . Indeed, the FDA alreadyseems to have takenthis position when permitting distribution of toxicdrugs, such as poisonsused forchemotherapy, that are dangerousfor the user but are not deemed 'dangerousto health'in the relevantsense."). For purposesof analyzingthe Court'sinterpretative method, it is unnecessaryto consider whetherit correctlydetermined this precise point. More importantare the implications thatthe Court drew fromthat conclusion. 63 Brown& Williamson,529 US at 143. 64 See Federal CigaretteLabeling and AdvertisingAct, Pub L No 89-92, 79 Stat 282 (1965); Public Health CigaretteSmoking Act of 1969, Pub L No 91-222, 84 Stat 87; Alco- hol and Drug Abuse Amendmentsof 1983, Pub L No 98-24, 97 Stat 175; Comprehensive SmokingEducation Act, Pub L No 98-474, 98 Stat 2200 (1984); ComprehensiveSmokeless Tobacco Health Education Act of 1986, Pub L No 99-252, 100 Stat 30; Alcohol, Drug Abuse,and Mental Health AdministrationReorganization Act, Pub L No 102-321,? 202, 106 Stat 394 (1992). 65 Brown& Williamson,529 US at 138. 66Id at 139 (quoting 15 USC ? 1331 (1994)).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 236 THE SUPREME COURT REVIEW [2000 side its jurisdiction.In particular,when passingits six post-FDCA tobacco statutes,"Congress ... acted againstthe backdropof the FDA's consistentand repeatedstatements that it lacked authority underthe FDCA to regulatetobacco absentclaims of therapeutic benefitby the manufacturer."67One examplewill suffice:In 1965, Congressenacted the Federal CigaretteLabeling and Advertising Act ("FCLAA"),68which required cigarette manufacturers to place warninglabels on all cigarettepackages.69 In a series of hearings precedingthis enactment,FDA and otheradministration officials repeatedlyadvised the relevantcongressional committees that the FDA lacked jurisdictionover tobacco productsunder the FDCA. The FCLAA also followedseveral unsuccessful legislative attempts to grantthe FDA such jurisdiction.70In lightof this history,the Court reasoned that statutessuch as the FCLAA had "ratified" the FDA's position,thereby expressing a legislative"intent" to precludethe exerciseof "significantpolicymaking authority on the subjectof smokingand health."71 Third, because the six post-FDCA statutes"created a distinct regulatoryscheme to addressthe problemof tobacco and health," the Court concluded that the resultingscheme "preclude[d]any role for the FDA."72 In this respect,the Court emphasizedthe "classic judicial task of reconcilingmany laws enacted over time and gettingthem to make sense in combination."" Specifically, the Court explainedthat a specificpolicy found in a laterstatute controlsthe interpretationof an earlierand more generalstatute, even if the earlierstatute has not been amended.74 The Court's approach reflectsdeeper assumptionsabout the properallocation of powerin themodern administrative state. Per- haps acknowledgingthe unconventionalityof its decisionto forgo

67 Id at 144. 68Pub L No 89-92, 79 Stat 282. 69Id ? 4, 79 Stat 283. 70 See Brown& Williamson,529 US at 144-46; see also HR 2248, 89th Cong, 1st Sess, 1 (1965); HR 9512, 88th Cong, 1st Sess, ? 3 (1963); HR 5973, 88th Cong, 1st Sess 1 (1963); S 1682, 88th Cong, 1st Sess (1963). 7 Brown& Williamson,529 US at 149. 72Id at 144.

7 Id (internalquotation marks omitted) (quoting United States v Fausto,484 US 439, 453 (1988)). 74Id at 143-44.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 237 all considerationof the FDCA's text,the Court recognizedthat the "natureof the questionpresented" had shaped its analysisof whetherCongress had "directlyspoken to the precisequestion at issue."" Specifically,the Court emphasizedthat the FDA had in- vokedits broad statutoryauthority to "to regulatean industrycon- sistingof a significantportion of the Americaneconomy."76 Even if Chevronordinarily instructs courts to presumethat a broad or ambiguousadministrative statute effects an implicitdelegation of lawmakingpower to the agency,the Court felt "confidentthat Congresscould not have intendedto delegatea decisionof such economic and politicalsignificance to an agencyin so cryptica fashion."77To avoid such an extraordinarydelegation, the Court creditedthe implicationsof post-FDCA tobacco legislationthat (in the Court's view) disclosed "a consistentjudgment" to deny the FDA power over tobacco.78Thus, althoughthe Court never explicitlyinvoked the canon of avoidance,Brown & Williamson's reasoningfits neatly within the Court's practiceof aggressively narrowingadministrative statutes to avoid serious nondelegation concerns.Because this approachraises serious but as yet largely unexaminedlegitimacy concerns, the Court'spractice merits closer examination.

II. MAKING SENSE OF THE NONDELEGATION DOCTRINE

More thana decade ago, the Court explainedthat "[i]n recent years,our applicationof the nondelegationdoctrine princi- pallyhas been limitedto the interpretationof statutorytexts, and, moreparticularly, to givingnarrow constructions to statutorydele- gationsthat otherwise might be thoughtto be unconstitutional."79 This practiceseeks to accommodatethe importantconstitutional interestspromoted by the nondelegationdoctrine, while avoiding certainpathologies thought to arise fromits directenforcement. Because othershave thoroughlyexamined the competingconsider-

75Id at 159. 76Id. 77 Id at 160. 78Id. 79 Mistrettav UnitedStates, 488 US 361,374 n 7 (1989).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 238 THE SUPREME COURT REVIEW [2000 ationsthat inform the nondelegationdebate,8s a briefsketch of the problemwill sufficeto framethe issue.

A. THE ILLUSORY NONDELEGATION DOCTRINE

Few doctrineshave perplexedthe SupremeCourt more than the nondelegationdoctrine. The Courthas repeatedlyemphasized that (at least in theory)this doctrine bars Congressfrom delegating its legislativepowers to the executiveor, for that matter,the judiciary.81It has matter-of-factlyattributed that principle to the con- stitutionalseparation of powersand, more particularly,to the fact that ArticleI of the Constitutionvests all legislativepowers in Congress.82Beyond these formalconsiderations, moreover, Con- gress presumablywas vestedwith such authorityon the basis of its singularqualities.83 More specifically,Article I, Section 7 fil- ters congressionallawmaking powers through the carefullystruc- turedprocess of bicameralpassage and presentmentto the Presi-

80 For varyingperspectives, see, for example,Kenneth Culp Davis, DiscretionaryJustice 27-51 (Louisiana State Univ Press, 1969); David Schoenbrod,Power Without Responsibility: How CongressAbuses the People Through Delegation (Yale Univ Press, 1993); Peter H. Aaran- son et al, A Theoryof Legislative Delegation, 68 Cornell L Rev 1 (1982); Lisa SchultzBress- man, SchecterPoultry at theMillennium: A DelegationDoctrine for theAdministrative State, 109 Yale L J 1399 (2000); David Epsteinand SharynO'Halloran, TheNondelegation Doctrine and theSeparation of Powers: A PoliticalScience Approach, 20 Cardozo L Rev 947 (1999); Jerry L. Mashaw,Prodelegation: Why Administrators Should Make PoliticalDecisions, 1 J L Econ & Org 81 (1985); Thomas O. Sargentich,The DelegationDebate and CompetingIdeals of the AdministrativeProcess, 36 Am U L Rev 419 (1987).

81 See, for example,Mistretta, 488 US at 371-72 ("[W]e long have insistedthat 'the integrityand maintenanceof the systemof government ordained by the Constitution'mandate that Congress generallycannot delegate its legislativepower to anotherBranch.") (quotingMarshall Field & Co. v Clark,143 US 649, 692 (1892)). 82 US Const,Art I, ? 1 ("All legislativePowers hereingranted shall be vestedin a Con- gressof the United States ... ."); see, for example,Loving v UnitedStates, 517 US 748, 758 (1996) ("The fundamentalprecept of the delegationdoctrine is that the lawmaking functionbelongs to Congress,U.S. Const.,Art. I, ? 1, and maynot be conveyedto another branchor entity.");Touby v UnitedStates, 500 US 160, 164-65 (1991) ("The Constitution providesthat '[a]ll legislativePowers hereingranted shall be vestedin a Congress of the United States.'U.S. Const.,Art. I, ?1. From thislanguage the Court has derivedthe nondelegationdoctrine: that Congress may not constitutionallydelegate its legislativepower to anotherbranch of Government.");Mistretta, 488 US at 371 ("The nondelegationdoctrine is rootedin the principleof separationof powersthat underlies our systemof government.").

83 Loving,517 US at 757-58 ("ArticleI's preciserules of representation,member qualifi- cations,bicameralism, and votingprocedure make Congress the branchmost capable of responsiveand deliberativelawmaking.").

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 239 dent.84By dividinglegislative power among threerelatively inde- pendent entities,that intricateand cumbersomeprocess serves several crucial constitutionalinterests: it makes it more difficult forfactions (or, as we would put it, "interestgroups") to capture the legislativeprocess for private advantage,8s it promotescaution and restrainsmomentary passions,86 it gives special protectionto the residentsof small statesthrough the states'equal representation in the Senate,87and it generallycreates a bias in favorof fil-

84 US Const, Art I, ? 7. 8sSee, for example,INS v Chadha,462 US 919, 951 (1983) (notingthat bicameralism addressedthe "fearthat special interests could be favoredat the expenseof publicneeds"); Federalist62 (Madison)in ClintonRossiter, ed, TheFederalist Papers 378-79 (Mentor,1961) ("[A] senate,as a secondbranch of the legislativeassembly, distinct from and dividingpower withthe first,... doubles the securityto the people, by requiringthe concurrenceof two distinctbodies in schemesof usurpationor perfidy,where the ambitionor corruptionof one, wouldotherwise be sufficient.");Federalist 73 (Hamilton)in Rossiter,ed, TheFederalist Papersat 443 (notingthat the veto "establishesa salutarycheck upon the legislativebody, calculatedto guard the communityagainst the effectsof faction,precipitancy, or of any impulseunfriendly to the public good which may happen to influencea majorityof that body"); 2 JosephStory, Commentaries on theConstitution of the UnitedStates ? 882, at 348 (Boston,Hillard, Gray, 1833) ("[T]he [veto]power . . . establishesa salutarycheck upon the legislativebody, calculatedto preservethe communityagainst the effectsof faction, precipitancy,unconstitutional legislation, and temporaryexcitements, as well as political hostility.")(citation omitted); see also RichardJ. Pierce,Jr., The Role of theJudiciary in Implementingan AgencyTheory of Government,64 NYU L Rev 1239, 1249 (1989) ("The Framerscreated two antidotesto factionalismin Congress:bicameralism and presentment. Bicameralismforces a potentialfaction to captureboth Houses of Congresssimultaneously. Presentmentgives the president-thepolitically accountable entity least susceptible to capture by factions-voice in the legislativeprocess."). 86 Chadha,461 US at 951 ("The divisionof the Congress into two bodies assuresthat the legislativepower would be exercisedonly afteropportunity for fullstudy and debate in separatesettings."); The PocketVeto Cases, 279 US 655, 678 (1929) (arguingthat it is an "essential . . . part of the constitutionalprovisions, guarding against ill-consideredand unwiselegislation, that the President,on his part,should have the fulltime allowed him for determiningwhether he should approve or disapprovea bill, and if disapproved,for adequatelyformulating the objectionsthat should be consideredby Congress").The calm- ing influenceof bicameralismis nicely captured in an analogy attributedto George Washington: There is a traditionthat, on his returnfrom France, Jefferson called Washing- ton to account at the breakfast-tablefor having agreed to a second chamber. 'Why,' asked Washington,'did you pour thatcoffee into your saucer?' 'To cool it,' quothJefferson. 'Even so,' said Washington,'we pour legislationinto the sena- torialsaucer to cool it.' Max Farrand,ed, 3 The Recordsof theFederal Convention of 1787, at 21 (Yale Univ Press, rev ed 1966). 87See, forexample, Garcia v San AntonioMetropolitan Transit Authority, 469 US 528, 551- 52 (1985) (discussingthe Senate's essentialrole in protectinginterests of states);Manning, 101 Colum L Rev at 75-77 (cited in note 24); Sunstein,67 U Chi L Rev at 319 (cited in note 5).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 240 THE SUPREME COURT REVIEW [2000 teringout bad laws by raisingthe decision costs of passing any law."88The nondelegationdoctrine protects those interests by forc- ing specificpolicies throughthe processof bicameralismand presentment,rather than permitting agency lawmaking on the cheap. Despite these apparentvirtues, the nondelegationdoctrine has, withthe exceptionof one briefmoment, never gained traction with the Court-at least not when invokedto invalidateacts of Con- gress.89Under black-letterlaw, the Court will uphold any organic statutethat supplies an "intelligibleprinciple" to channelagency discretion.90Virtually anything, moreover, counts as an intelligible

8 The bias in favorof blockinglegislation did not go unnoticedduring the debatesover the Constitution'sadoption. See, forexample, Federalist 62 (Madison) in Rossiter,ed, The FederalistPapers at 378 (cited in note 85) (acknowledgingthat "this complicatedcheck on legislationmay in some instancesbe injuriousas well as beneficial");Federalist 73 (Hamil- ton) in Rossiter,ed, The FederalistPapers at 443 (notingthat "the powerof preventingbad laws includesthat of preventinggood ones"). And both the costs and benefitsassociated witha burdensomelegislative process were franklyacknowledged in thesedebates. See, for example,Federalist 62 (Madison) in Rossiter,ed, The FederalistPapers at 378 (arguingthat "the facilityand excess of law-makingseem to be the diseases to which our governments are most liable"); Federalist73 (Hamilton) in Rossiter,ed, The FederalistPapers at 443 ("The injurywhich may possiblybe done by defeatinga few good laws will be amply compensatedby the advantageof preventinga numberof bad ones."). 89The Court only twice invalidatedstatutes on nondelegationgrounds. ALA Schechter PoultryCorp. v UnitedStates, 295 US 495 (1935); Panama RefiningCo. v Ryan,293 US 388 (1935). 90 J.W. Hampton,Jr., & Co. v UnitedStates, 276 US 394, 409 (1928) (articulatingthe "intelligibleprinciple" test). The Court apparentlybelieves that when a statutesets down an intelligibleprinciple, the agencycan be thoughtof as implementinglegislative directions, ratherthan exercising legislative authority. See, forexample, Loving, 517 US at 770 ("The intelligible-principlerule seeks to enforcethe understandingthat Congress may not delegate the power to make laws and so may delegate no more than the authorityto make policies and rules that implementits statutes.");Yakus v UnitedStates, 321 US 414, 426 (1944) ("Only if we could say thatthere is an absence of standardsfor the guidanceof the Administrator'saction, so thatit would be impossiblein a properproceeding to ascertain whetherthe will of Congresshas been obeyed,would we be justifiedin overridingits choice of means foreffecting its declaredpurpose."); Marshall Field & Co., 143 US at 694 (" 'The truedistinction . . . is betweenthe delegationof powerto make the law, whichnecessarily involvesa discretionas to what it shall be, and conferringauthority or discretionas to its execution,to be exercisedunder and in pursuanceof the law.' ") (quotingCincinnati, Wil- mington& ZanesvilleR. Co. v Commissioners,1 Ohio St 77, 88-89 (1852)). Under thatview, the agencyis engagedin law "execution,"rather than receiving delegated legislative authority.See Loving,517 US at 777 (Scalia concurringin part and concurringin the judgment) ("What Congressdoes is to assignresponsibilities to the Executive;and when the Executive undertakesthose assignedresponsibilities it acts,not as the 'delegate' of Congress,but as the agentof the People. At some pointthe responsibilitiesassigned can become so extensive and so unconstrainedthat Congress has in effectdelegated its legislativepower; but until thatpoint of excessis reachedthere exists, not a 'lawful'delegation, but no delegationat all.").

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 241 principle.91Two considerationsappear to explain much of this attitude.92 First,the Court has suggestedthat if governmentis to function, Congress musthave the power to delegatesignificant policy discretionto the law's executors.93And the appropriatelimits of such delegation"must be fixedaccording to commonsense and the in- herentnecessities of... governmentalco-ordination."94 Starting fromthat premise, the Court'shands-off approach reflects "a prac- tical understandingthat in our increasinglycomplex society, re- plete with ever changingand more technicalproblems, Congress simplycannot do its job absentan abilityto delegatepower under broad generaldirectives."95 Second,the Court'sreluctance to invalidatestatutes on thebasis of the nondelegationdoctrine reflects serious concernsabout its own competenceto draw appropriatelines betweenpermissible and impermissibledelegations. All legislationnecessarily leaves some measureof policy-makingdiscretion to thosewho implement it.96Accordingly, enforcement of the nondelegationdoctrine nec-

91 See, forexample, Lichter v UnitedStates, 334 US 742, 785-86 (1948) (sustainingagency authorityto recoup "excessiveprofits" on war contracts);American Power & Light Co. v SEC, 329 US 90, 105 (1946) (SEC may rejectcorporate reorganizations that are not "fair and equitable");NBC v UnitedStates, 319 US 190,225-26 (1943) (Congressmay grant FCC powerto allocatebroadcasting licenses in "the publicinterest, convenience, and necessity"). 92 See RichardB. Stewart,Beyond Delegation Doctrine, 36 Am U L Rev 323, 324 (1987) (discussingreasons for nonenforcement of the nondelegationdoctrine). 93 See, forexample, United States v ShreveportGrain & ElevatorCo., 277 US 77, 85 (1932) (approving"directions to those chargedwith the administrationof the act to make supple- mentaryrules and regulationsallowing reasonable variations, tolerances, and exemptions, which,because of theirvariety and need of detailedstatement, it was impracticablefor Congress to prescribe");Union Bridge Co. v UnitedStates, 204 US 364, 387 (1907) ("[I]t is not too much to say thata denial to Congress of the right,under the Constitution,to delegatethe powerto determinesome factor the stateof thingsupon whichthe enforcement of its enactmentdepends, would be 'to stop the wheels of government'and bring about confusion,if not paralysis,in the conductof the public business."). 94J.W. Hampton,Jr. & Co., 276 US at 406. 95Mistretta, 488 US at 372; see also, forexample, American Power & LightCo., 329 US at 105 ("The judicial approvalaccorded these 'broad' standardsfor administrativeaction is a reflectionof the necessitiesof modernlegislation in dealingwith complexeconomic and social problems.");Sunshine Anthracite Coal Co. v Adkins,310 US 381, 398 (1940) ("Del- egation by Congress has long been recognizedas necessaryin order that the exertionof legislativepower does not become a futility."). 96See Mistretta,488 US at 415 (Scalia dissenting)(arguing "that no statutecan be entirely precise,and that some judgments,even some judgmentsinvolving policy considerations, mustbe leftto the officersexecuting the law and to the judgesapplying it"). The inevitabil- ity of interpretivediscretion is not a new idea. See, for example,1 William Blackstone,

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 242 THE SUPREME COURT REVIEW [2000 essarilyreduces to the questionwhether a statuteconfers too much discretion.Without a reliable metric(other than an I-know-it- when-I-see-ittest), the Court has long doubted its capacityto makeprincipled judgments about such questionsof degree.97Con- sequently,even if the nondelegation doctrine does representa fun- damentalpremise of theconstitutional structure, a growing judicial consensusassumes that "it is not an elementreadily enforceable by thecourts,"98 at leastnot bymeans of directjudicial invalidation of administrativestatutes.

B. THE NONDELEGATION DOCTRINE AS A CANON OF AVOIDANCE

Despite the Court's apparentrefusal to enforcethe nondelegation doctrinedirectly, cases such as Brown& Williamsonillus- tratethe Court's modernstrategy of usingthe canon of avoidance to promote nondelegationinterests.99 Where a statuteis broad enough to raise serious concernsunder the nondelegationdoc-

Commentarieson theLaws of England *61 (noting that "in laws all cases cannot be foreseen andexpressed"); Federalist 37 (Madison)in Rossiter,ed, TheFederalist Papers at 229 (cited in note85) ("[I]t musthappen that however accurately the objects may be discriminated in themselves,and however accurately the discrimination may be considered,the definition of themmay be renderedinaccurate by the inaccuracyof the termsin whichit is delivered."). 97As ChiefJustice Marshall once put it: The differencebetween the departmentsundoubtedly is, thatthe legislature makes,the executive executes, and the judiciary construes the law; but the maker ofthe law may commit something to thediscretion of the other departments, and theprecise boundary of thispower is a subjectof delicateand difficultinquiry, intowhich a courtwill not enter unnecessarily. Waymanv Southard, 23 US 1,46 (1825).For further discussion of this point, see, for example,Manning, 97 ColumL Rev at 727 (citedin note21); Sunstein,67 U Chi L Rev at 326-28 (citedin note5). 98Mistretta, 488 US at 415 (Scaliadissenting); see also FPC v NewEngland Power Co., 415 US 345, 352-54 (1974) (Marshallconcurring) (noting that the Court has "virtually abandoned"nondelegation doctrine); Sunstein, 67 U Chi L Revat 326-28(cited in note 5). The Courtitself recently suggested that courts cannot successfully draw the line between lawmakingand law implementation: The Government'sdistinction between "making" law and merely "enforcing" it, between"policymaking" and mere "implementation," is an interestingone. It is perhapsnot meant to be thesame as, but it is surelyreminiscent of, the line that separatesproper congressional conferral of Executive power from unconstitutional delegationof legislative authority for federal separation-of-powers purposes. This Courthas not been notably successful in describingthe latter line; indeed, some thinkwe haveabandoned the effort to do so. Printzv UnitedStates, 521 US 898,927 (1997)(citations omitted). 99For a descriptionof thispractice, see Cass R. Sunstein,Interpreting Statutes in the Regu- latoryState, 103 HarvL Rev405, 470 (1989).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 243 trine,the Court simplycuts it back to acceptablebounds.'"1 This strategy,it is said, offersjudges "a finerweapon" thanMarbury- stylejudicial review.1"'If judges cannot draw principledlines between permissibleand excessivedelegations, they can interpret statutes.102And because judges routinelyconstrue statutes to avoid grave constitutionaldoubts in othercontexts,"13 they can relyon the same approachto avoid seriousquestions under the nondelegation doctrine.1"As a canon of construction,the nondelegation doctrinehas provenattractive to manywho doubt its efficacyas a basis forjudicial review.5"'

100I would distinguishthis practice from cases in whichthe Court simplyconcludes that the textof an administrativestatute, understood in context,has a specializedconnotation thatis narrowerthan the everydaymeaning of the terms.For instance,sometimes a statu- toryphrase seems exceedinglybroad on its face, but draws refinementfrom established traditionsor practicesassociated with the phraseor subjectin question.See, forexample, Faheyv Mallonee,332 US 245, 250 (1947) (readingauthority to promulgateregulations for appointingconservators for savings and loan associationsin lightof "well-definedpractices forthe appointmentof conservators");American Power & LightCo., 329 US at 104 (statute prohibitingpolice corporatepractices that "unduly or unnecessarilycomplicate the structure" of a public utilityor "unfairlyor inequitablydistribute voting power among [its] securityholders" are intelligibleto those "familiarwith corporate realities"); Federal Radio Comm'nv NelsonBros Bond & MortgageCo., 289 US 266, 285 (1933) (narrowing"public convenience,interest or necessity"in lightof "its context[and] the nature of radio transmis- sion and reception").Often, this strategy involves the conventionalidea thatwhen Congress uses a termof art,"it presumablyknows and adoptsthe clusterof ideas thatwere attached to each borrowedword in the body of learningfrom which it was taken."Morrissette v UnitedStates, 342 US 246, 263 (1952). And such cases simplyreflect the realitythat statutes mustbe interpretedin context.See Deal v UnitedStates, 508 US 129, 132 (1993) (applying the "fundamentalprinciple of statutoryconstruction ... thatthe meaningof a wordcannot be determinedin isolation,but mustbe drawnfrom the contextin whichit is used"). Such decisions do not involvethe alterationof statutorymeaning to avoid a serious question under the nondelegationdoctrine. 101 Paul Gewirtz,The Courts,Congress, and ExecutivePolicy-Making: Notes on ThreeDoc- trines,40 L & Contemp Probs, Summer1976, at 46, 72. 102Id. 103 See, forexample, Jean v Nelson,472 US 846, 854 (1985); NLRB v CatholicBishop, 440 US 490, 499-501 (1979); Int'lAss'nofMachinists v Street, 367 US 740, 749 (1961). Professor Sunsteinhas suggestedthat, in general,applying the canon of avoidanceto administrative statutesserves a specialset of nondelegationinterests; it compelsCongress to speak explic- itlywhen it wishes to push againstconstitutional boundaries. See Sunstein,67 U Chi L Rev at 331-32 (cited in note 5). This paper does not addressthat broad claim as it relates to the avoidance of constitutionalquestions arisingunder provisionssuch as the First Amendment,which do not speak directlyto the legislativeprocess prescribed by ArticleI. Rather,it considersonly those cases in which the Court invokesthe avoidancecanon to vindicatenondelegation concerns as such. 04Gewirtz, 40 L & Contemp Probs at 73-75 (cited in note 101). 105See, forexample, Richard B. Stewart,The ReformationofAmerican Administrative Law, 88 Harv L Rev 1669, 1697 (1975); Cass R. Sunstein,103 Harv L Rev at 470 (cited in note 99).

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In general,applying the canon of avoidanceentails excluding a givenstatutory application because thatapplication raises a serious questionunder a constitutionalprovision such as the FirstAmend- ment.This means thatthe Court's interpretationis drivenby the underlyingsubstantive protection (e.g., do not construethe NLRA to ban peacefulleafleting). But the underlyingissue is fardifferent in the nondelegationcontext. Here, the Court's taskis simplyto narrowwhat mightotherwise be constitutionallyexcessive gener- ality.To achieve that goal, the Court typicallyposits a plausible backgroundpurpose to restrictotherwise broad and unqualified statutorylanguage. Industrial Union Department, AFL-CIO v Ameri- can PetroleumInstitute,106 better known as the Benzenecase, is perhaps the mostfamous illustration of thisapproach. Section 6(b)(5) of the OccupationalSafety and Health Act ("the OSH Act") pre- scribedvery open-ended regulatory criteria for "toxic materials or harmfulphysical agents."'"' In particular,Section 6(b)(5) required the Secretaryof Labor to "set the standardwhich most adequately assures,to the extentfeasible, . . . that no employeewill suffer materialimpairment of healthor functionalcapacity even if such employeehas regularexposure to the hazard."'18Benzene was a nonthresholdtoxic material;scientific methods could identifyno safeexposure level. In thosecircumstances, the Secretaryof Labor interpretedSection 6(b)(5) to requirethe lowestlevel of benzene exposurethat was not only technologicallyfeasible but also eco- nomicallyfeasible (in the sense thatit would not threatenthe fi- nancialviability of benzene-relatedindustries).109 In an opinion concurringin the judgment,then-Justice Rehn- quist contendedthat the phrase "to the extentfeasible" provided no intelligibleprinciple to guide the Secretary'sdiscretion; it gave the Secretary"no indicationwhere on the continuumof relative safetyhe should draw his line.""11While agreeingthat the OSH Act raisedserious nondelegation concerns, Justice Stevens's pluralityopinion invokedthe canon of avoidanceto narrowthe Act to a constitutionallyacceptable breadth."' Emphasizing that the Act 106 448 US 607 (1980). 107 29 USC ? 655(b)(5). 108sId. 109AmericanPetroleum Institute, 448 US at 637. 110Id at 675 (Rehnquistconcurring in the judgment). "I Id at 642-46 (pluralityopinion).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 245 would "give the Secretaryunprecedented power over American in- dustry"if "limited only by the constraintof feasibility,"the plural- ityimposed a thresholdrequirement that the Secretaryfind a "significantrisk" to employeehealth before adopting a regulation.112 Althoughthe OSH Act itselfnowhere explicitly required a "significantrisk" element, the pluralityderived that requirement largelyfrom two sources.First, Section 3(8) of the Act generally defined"occupational safety and health standard"to mean mea- sures "reasonablynecessary or appropriateto provide safe or healthfulemployment and places of employment."113Focusing on the word "safe" in Section 3(8), the pluralityreasoned that "a workplacecan hardlybe considered'unsafe' unless it threatensthe workerswith a significantrisk of harm."114The Court then read theAct's general definition of "occupationalsafety and healthstan- dard" into the more specificcriteria prescribed by Section 6(b)(5) forstandards governing toxic materials."' In addition,the plurality citedlegislative history that (in itsview) suggested a legislativepurpose to eliminateonly "significant"risks of harm."6 The plurality then narrowedSection 6(b)(5)'s broad instructionsto cover only the particularevil thatthe Act was said to address. As othershave argued,the plurality's imposition of a "significant risk"requirement seems to rewritethe OSH Act."' It surelydoes not reflectits mostnatural reading under established rules of construction.Because the phrase"safe or healthful"(as used in Sec- tion 3(8)) is nowheredefined, its generallyapplicable terms should

112Id at 645. 11329 USC ? 652(8). 114American Petroleum Institute, 448 US at 642 (pluralityopinion). 115Id at 642-43. 116Id at 646-52. 117See, forexample, Jerry L. Mashaw,As If RepublicanInterpretation, 97 Yale L J1685, 1691(1989) ("One commonunderstanding ofthe Supreme Court's judgment in thatcase . . is thatthe Court rewrote the Occupational Safety and HealthAct in orderto avoid affirmingwhat it perceivedto be an unreasonablycostly health regulation."); Martin Sha- piro,Administrative Discretion: The Next Stage, 92 Yale L J1487, 1507 (1992) (noting that courts"may strike their own balance, declaring it thelegislature's true intent," and that theBenzene plurality "read a requirementof'significant risk' into the statute"); Richard B. Stewart,Regulatory Jurisprudence: Canons Redux, 79 CalifL Rev807, 817-18 (1991) (noting theoddity of precluding an agency"from regulating a risk a courtmight deem not 'significant'-wherethe statute does notcontain any requirement of 'significance'and, indeed, whereit providesthat toxic substance standards must ensure 'to theextent feasible . . . that no employeewill suffer material impairment ofhealth or functional capacity' ") (bookreview of Cass R. Sunstein,After the Rights Revolution (Harvard Univ Press, 1990)).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 246 THE SUPREME COURT REVIEW [2000 have drawncontent from the Section 6(b)(5)'s specificrequirement thatstandards for toxins ensure "to the extentfeasible ... thatno employeewill suffermaterial impairment of health or functional capacity.""118That is to say, Section 6(b)(5) specifieswhat counts as "safe or healthful"where toxins are concerned.Further, as the separateopinions in Benzeneclearly establish, the legislative history did not speak with the clarityof purpose that the pluralitysug- gests.19In lightof these considerations,the Court's strategymust be understoodas a decisionto injectthe OSH Actwith a plausible, if not legislativelymandated, purpose that would civilizean otherwise "'sweeping delegationof legislativepower' that... mightbe unconstitutional."120 Althoughthe Court has now identifiedthis method as its pre- ferred(if not exclusive)strategy for addressing nondelegation concerns,121it has failed to confrontthe question whetherjudicial narrowingof self-consciousstatutory breadth reflects a legitimate means to enforcea doctrinethat is designedto ensurelegislative responsibilityfor making important policy choices. The answerto that questioncasts importantlight on Brown& Williamson.

118As JusticeMarshall's dissenting opinion put it: The plurality'sinterpretation renders utterly superfluous the firstsentence of ? 655(b)(5), which . . . requiresthe Secretaryto set the standard"which most adequatelyassures . . . thatno employeesuffer material impairment of health." ... By so doing,the pluralitymakes the textfor standards regulating toxic sub- stancesand harmfulphysical agents substantially identical to the testfor standards generally-plainlythe oppositeof whatCongress intended. And it is an odd canon of constructionthat would insertin a vague and general definitionalclause a thresholdrequirement that overcomes the specificlanguage placed in a standard- settingprovision. AmericanPetroleum Institute, 448 US at 709 (Marshalldissenting). 119 See AmericanPetroleum Institute, 448 US at 676-82 (Rehnquistconcurring in thejudg- ment)(arguing that the "somewhatcryptic legislative history" does not impose a significant riskrequirement or impose meaningfullimits on the "feasibility"requirement); id at 710- 11 (Marshall dissenting)(arguing that the pluralityrelied on "isolated statementsin the legislativehistory," which in contextdo not supportthe requirementof a thresholdfinding of significantrisk). 120Id at 646 (plurality)(citation omitted). 121 See Mistretta,488 US at 374 n 7. For other applicationsof this approach,see, for example,National Cable TelevisionAss'n v FCC, 415 US 336, 341-42 (1974) (readingthe IndependentOffices Appropriations Act "narrowlyto avoid constitutionalproblems" raised by agency'sopen-ended authority to impose "fees" on regulatedparties; holding that "fee" mustreflect benefit to regulatedparty); FPC v New EnglandPower Co., 415 US 345 (same); NationalAss'n ofBroadcasters v Copyright Royalty Tribunal, 675 F2d 367, 376 n 12 (DC Cir 1982) (findingan intelligibleprinciple to guide the tribunalin disbursingcable royaltyfees in "specificstatements in the legislativehistory and in the generalphilosophy of the Act itself").

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C. THE LEGISLATIVE PROCESS IMPLICATIONS OF NARROW CONSTRUCTION

Because thenondelegation doctrine seeks to ensurethat binding legislativecommands are the product of the legislativeprocess mandatedby ArticleI, the narrowconstruction strategy is self- defeatingunless the Court can somehowjustify its creativeinter- pretationsas a faithfulreflection of legislative,rather than judicial, commands.Otherwise, the narrowconstruction strategy does not place responsibilitywith Congress (as the nondelegationprinciple instructs),but merelysubstitutes judicial discretion for agency dis- cretionin definingthe statute'smeaning. Until recently, this possi- bilityraised little concern. Under the reasoningof decisionssuch as Churchof theHoly Trinityv UnitedStates,122 courts did not in- trudeupon legislativesupremacy when theynarrowed seemingly overbroad language to reflectthe legislation'sapparent backgroundpurpose.123 The reasonwas this:Congress legislates against constraintsof limitedtime, resources, and foresight;it must rely on imperfectlanguage to expressits intentions.Because statutes will thereforebe overinclusiveand underinclusivein some circumstances,a courtwas thoughtto promote,rather than disserve, legislativesupremacy when it conformedan imperfectstatutory text to its backgroundpurposes.124 To the extentthat this interpretive techniquewas otherwiselegitimate, it assuredlymade sense forthe judiciaryto invokethat method to preventCongress from pressing "into dangerousconstitutional thickets."125 Emphasizingthe insightsof public choice theory,126however, 122 143 US 457 (1892); see also, forexample, California Federal Savs & LoanAss'n v Guerra, 479 US 272, 284 (1987); UnitedSteelworkers v Weber,443 US 193, 202 (1979); Train v ColoradoPublic Interest Research Group, 426 US 1, 10 (1976). 123I have discussedHoly Trinity's foundations in greaterdetail elsewhere.See Manning, 101 Colum L Rev at 10-15 (cited in note 24). 124 In HolyTrinity, for example, Congress had broadlyprohibited the importationof "labor or serviceof any kind." See Alien ContractLabor Act of 1885, ch 164, ? 1, 23 Stat 332, 332. But the titleof the act, its legislativehistory, and the circumstancessurrounding its enactmentsuggested that Congress had done so forthe apparentpurpose of preventing "the influxof this cheap, unskilledlabor." Holy Trinity,143 US at 465. In lightof this backgroundpurpose, the Court feltjustified in clippingback the Act's broad prohibition to excludeprofessionals ("brain toilers") from its sweep.Id at 464; see also id at 459 (noting thatjudicial efforts to conforma broad textto its purposeare "not the substitutionof the will of the judge forthat of the legislator"). 125 PublicCitizen v U.S. Dep't ofJustice, 491 US 440, 466 (1989). 126 Public choice theoryis of course a branchof politicalscience that uses the insights of economicsand game theoryto analyzethe processesof governmentaldecision making.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 248 THE SUPREME COURT REVIEW [2000 modern textualismhas in recentyears challengedthe legitimacy of this method of clippingback otherwiseunqualified statutory texts.127For severalrelated reasons, textualists believe that the legislativeprocess is too complexand messyto permitreliable discernmentof legislation'sunexpressed purposes in the mannersug- gested by Holy Trinity:128First, statutes are oftenthe productof compromiseamong competing interest groups,129 and the statutory text may reflecta compromisethat falls shortof or exceeds the backgroundpurpose that apparentlyinspired it.130 Accordingly, courtsmust enforcenot a statute'sbackground purposes but the outcomesreflected in the languageadopted. Second, buildingon Arroviansocial choice theory,"'textualists argue that a statute's ultimatecontent may in factreflect procedural factors, such as the sequence of alternativespresented (agenda manipulation)and the practiceof strategicvoting (logrolling).132 For thatreason, it is dif-

See Daniel A. Farber and Philip P. Frickey,Law and PublicChoice: A CriticalIntroduction 21-33, 47-62 (Univ of Chicago Press, 1990). 127 As discussedbelow, this challenge bears directly on the legitimacyof narrowing administrativestatutes to avoid nondelegationconcerns. See textaccompanying notes 136-46. 128Because Judge Easterbrookhas been the most consistentexponent of this position, much of the followingdiscussion is drawnfrom his writings. 129 Specifically,interest-group theory suggests that interestgroups purchaselegislation through"campaign contributions, votes, implicit promises of futurefavors, and sometimes outrightbribes." William M. Landes and RichardA. Posner, The IndependentJudiciary in an Interest-GroupPerspective, 18 J L & Econ 875, 877 (1975). 130See, forexample, Frank H. Easterbrook,Foreword: The Courtand theEconomic System, 98 Harv L Rev 4, 46 (1984) (notingthat in such instances,"[w]hat Congress wanted was the compromise,not the objectivesof the contendinginterests"). For helpfuldescriptions of the publicchoice critiqueof strongpurposivism, see WilliamN. Eskridge,Jr. and Philip P. Frickey,Statutory Interpretation as PracticalReasoning, 42 Stan L Rev 321, 335 (1990) (explainingpublic choice theory'scontention "when a court uses purposivistanalysis to elaboratea statute,it may actuallyundo a deliberateand preciselycalculated deal worked out in the legislativeprocess"); Philip P. Frickey,From the Big Heat to theBig Sleep: The Revivalof Theory in StatutoryInterpretation, 77 Minn L Rev 241, 251 (1992) (discussingthe claim thatjudges could "reach the wrongresults" by "promotinga public policypurpose gleaned fromthe statuterather than followingthe truelines of legislativecompromise"); Manning, 101 Colum L Rev at 18 (cited in note 24). 13'See generallyKenneth J. Arrow, Social Choiceand IndividualValues (Yale Univ Press, 2d ed 1963). 132 See FrankH. Easterbrook,Statutes' Domains, 50 U Chi L Rev 533, 547-48 (1983): Althoughlegislators have individuallists of desires,priorities, and preferences,it turnsout to be difficult,sometimes impossible, to aggregatethese lists into a coherentcollective choice. Every systemof votinghas flaws.The one used by legislaturesis particularlydependent on the order in which decisionsare made. Legislaturescustomarily consider proposals one at a timeand thenvote themup or down. This methoddisregards third or fourthoptions and the intensitywith whichlegislators prefer one optionover another. Additional options can be consid-

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 249 ficult(if not impossible)to knowwhy a statutetook the particular shape thatit did-and thusartificial to alterthe statute'sclear text to promotethe "true" legislativepurpose."33 Third, to the extent that (contraryto public choice theory)legislation reflects an ac- cessible and coherentpurpose, the breadthof a statuteitself says somethingimportant about that purpose. Because Congress can (and does) legislatealternatively through open-ended standards or specificrules, shifting a statute'slevel of generalityto conformto its background purpose dishonors an apparent congressional choice to legislatein broader(or narrower)terms.134 Althoughthe Court has not fullyembraced textualism,135 it has assimilatedcertain important textualist assumptions that cast doubt on itsnondelegation strategy. The Court has thusemphasized that Congressmay be unanimousin its intentto stampout some vaguesocial or economicevil; however, because its Members

ered onlyin sequence,and thismakes the orderof decisionvital. It is fairlyeasy to show that someone with controlof the agenda can manipulatethe choice so thatthe legislatureadopts proposalsthat only a minoritysupport. The existence of agenda controlmakes it impossiblefor a court-even one that knows each legislator'scomplete table of preferences-tosay what the whole bodywould have done witha proposalit did not considerin fact. See also id at 548 ("[W]hen logrollingis at workthe legislativeprocess is submergedand courtslose the informationthey need to divinethe body's design."); KennethA. Shepsle, CongressIs a 'They,'Not an 'It': LegislativeIntent as Oxymoron,12 Intl Rev L & Econ 239, 244 (1992) ("Many policies,in principle,can topple an existingstatus quo. That some are more likelythan othersto actuallydo so is dependenton idiosyncratic,structural, procedural, and strategicfactors, which are at best tenuouslyrelated to normativeprinciples embracedby democratictheorists and philosophers."). 133In otherwords, if one acceptsthe premisesof public choice theory,the verynotion "thatstatutes have purposesor embodypolicies becomes quite problematic,since the con- tentof the statutesimply reflects the haphazardeffect of strategicbehavior and procedural rules."Farber and Frickey,Law & PublicChoice at 41 (citedin note 126) (criticallydiscussing the implicationsof Arrovianpublic choice theory). 134As JudgeEasterbrook has explained,"[s]ometimes Congress specifies values or ends, thingsfor the executiveand judicialbranches to achieve,but oftenit specifiesmeans, creat- ing loopholes but greatercertainty." Frank H. Easterbrook,Text, Structure, and Historyin StatutoryInterpretation, 17 Harv J L & Pub Pol 61, 68 (1994). Relyingon "an imputed spiritto convertone approachinto anotherdishonors the legislativechoice as expresslyas refusingto followthe law." Id. 135See Michael C. Dorf,Foreword: The Limitsof Socratic Deliberation, 112 Harv L Rev 4, 6 (1998) (describingthe Court's eclecticapproach to statutoryinterpretation). For example, the modernCourt sometimesengages in stronglypurposive interpretation. See Clintonv New York,524 US 417, 428-29 (1998) (broadeningan expeditedreview provision because the literalmeaning undermined the statutorypurpose to provide"a promptand authoritative judicial determinationof the constitutionalityof the [Line Item Veto] Act"); Lewisv UnitedStates, 523 US 155, 160 (1998) (refusingto enforcea statute'sconventional meaning when "a literalreading of the words . .. would dramaticallyseparate the statutefrom its intendedpurpose").

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maydiffer sharply on themeans for effectuating that intent, the finallanguage of the legislationmay reflect hard-fought compromises.Invocation of the"plain purpose" of legislation at theexpense of the terms of the statute itself takes no account of theprocesses of compromise. 1.. 136 This premisehas been a recurringtheme in manyrecent cases."37 Perhaps more important,it has led the Court to conclude that, forunknowable reasons, Congress often adopts statutory texts that transcendthe purposethat (apparently) inspired their enactment. Such breadthis a legislativesignal thatwarrants judicial respect. Thus, the Court recentlyemphasized that "statutory prohibitions oftengo beyondthe principalevil to coverreasonably comparable evils,and it is ultimatelythe provisionsof our laws ratherthan the principalconcerns of our legislatorsby whichwe are governed."138 In anotherrecent case, the Court made clear that"it is not, and cannot be, our practiceto restrictthe unqualifiedlanguage of a statuteto the particularevil thatCongress was tryingto remedy- even assumingthat it is possible to identifythat evil fromsome- thingother than the textof the statuteitself.""139 Statutory breadth

136Bd. ofGovernors of the Federal Reserve Bd. v DimensionFinance Corp., 474 US 361, 372 (1986). 137 See, forexample, MCI TelecommunicationsCorp. v FCC, 512 US 218, 231 (1994) (Scalia) (notingthat judges "are bound,not only by the ultimatepurposes Congress has selected, but by the means it has deemed appropriate,and prescribed,for the pursuitof those purposes") (Scalia); LandgrafvUSI FilmProducts, Inc., 511 US 244, 286 (1993) (Stevens)("Stat- utes are seldom craftedto pursuea singlegoal, and compromisesnecessary to theirenact- mentmay requireadopting means otherthan those thatwould most effectivelypursue the main goal."); WestVirginia Univ. Hosps v Casey,499 US 83, 98-99 (1990) (Scalia) ("The best evidenceof. . purpose is the statutorytext adopted by both Houses of Congress and submittedto the President.");Pension Benefit Guaranty Corp. v LTV Corp.,496 US 633, 646-47 (1990) (Blackmun)("'[N]o legislationpursues its purposesat all costs. Deciding what competingvalues will or will not be sacrificedto the achievementof a particular objectiveis the veryessence of legislativechoice-and it frustratesrather than effectuates legislativeintent simplistically to assumethat whatever furthers the statute'sprimary objective must be the law.' ") (quotingRodriguez v UnitedStates, 480 US 522, 526 (1987) (per curiam)). 138Oncale v SundownerOffshore Servs, Inc., 523 US 75, 79 (1998). 139Brogan v UnitedStates, 522 US 398, 403 (1998). In Brogan,the Court refusedto narrow 18 USC ? 1001, which prescribescriminal penalties for any personwho "knowinglyand willfully... makesany false, fictitious or fraudulentstatements or representations"concern- ing "any matterwithin the jurisdiction"of a federalagency. The courtsof appeals had almostuniformly held that? 1001 incorporatedan impliedexception for the so-called"ex- culpatoryno"-that is, falselyreplying "no" to a federalinvestigator's question about culpa- bility.Brogan, 522 US at 401 (collectingcases). Brogan defendedthat position by arguing that? 1001's purposewas to preventthe "perversion"of the governmentalfunctions and thathis simpledenial of guiltdid not producethat mischief. Although the Courthad previ- ously described? 1001's purposein preciselysuch termsin UnitedStates v Gilliland,312 US 86, 93 (1941), the majorityin Broganperceived "no inconsistencywhatsoever between

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 251 maymean thatthe legislativemajority wished to leave the statute's precise applicationto futureresolution, that contendingforces could not agree on a more precise expressionof policy,or that legislatorssimply did not foreseeall the implicationsof the text they adopted. Without knowingwhy Congress spoke in broad terms,the Court must accept that "the reach of a statuteoften exceeds the precise evil to be eliminated."'" And textualopen- endednessmust be understoodnot as the likelyreflection of un- anticipatedoverbreadth (as in HolyTrinity), but ratheras the pre- sumed exerciseof legislativechoice.141 Such principleshave particularforce in the contextof administrativestatutes. As discussed,the Court acceptsbroad delegations largelybecause Congress cannot alwaysforesee and providefor a statute'sdetailed applications.142Chevron reflects precisely this assumption.'43The ChevronCourt thus explainedthat Congress mightchoose to enact an open-endedadministrative statute for a host of reasonsthat are unknowableto a reviewingcourt: Perhaps[Congress] consciously desired the [agency]to strike the[specific policy] balance ..., thinkingthat those with great expertiseand charged with responsibility for administering the provisionwould be in a betterposition to do so; perhapsit simplydid not consider the question at thislevel; and perhaps Congresswas unable to forgea coalitionon eitherside of the question,and those on eachside decided to taketheir chances withthe scheme devised by the agency. For judicialpurposes, it mattersnot which of theseoccurred.144 If thatassumption is correct,a reviewingcourt risks unsettling a legislativechoice to leave a problemfor another day when it im- poses upon a statutedeterminacy that Congress itself did not sup-

the propositionthat Congress intended to protectthe authorizedfunctions of governmental departments. . . fromperversion . . . and the propositionthat the statuteforbids all the deceptivepractices described." Brogan, 522 US at 403-04 (quotationmarks omitted). 140Id; see also Sunstein,47 Duke L J at 1044-46 (citedin note 28) (discussingthe implications of Broganand Oncalefor the meaningof the FDCA). 141See PennsylvaniaDep't of Correctionsv Yeskey, 524 US 206, 212 (1998); see also, for example,NOW, Inc. v Scheidler,510 US 249, 262 (1994) (distinguishingbetween ambiguity and breadth);United States v Monsanto,491 US 600, 609 (1989) (same); Sedima,SPRL v ImrexCo., 473 US 479, 499 (1985) (same). 142 See textaccompanying notes 93-95. 143Chevron USA, Inc. v NRDC, Inc.,467 US 837 (1984). 144Id at 865.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 252 THE SUPREME COURT REVIEW [2000 ply.14sEspecially in the administrativecontext (where constitutional presumptionsare said to favoragency rather than judicial resolutionof indeterminacy),146a court must respect a statute'slack of specificity,just as it must respecta statute'sspecificity when Congresshas spokenclearly. Accordingly, when the Courtnarrows a broad administrativestatute to reflectan unenactedpurpose, as in Benzene(or, as we shallsee, Brown&r Williamson),its own prece- dentssuggest that it is disturbingthe verychoice or compromise thatthe legislativeprocess has produced. To concludethat narrow construction contradicts legislative su- premacydoes not of course answerthe separatequestion whether such a strategyreflects a legitimatemeans of avoidingserious non- delegationquestions. As a generalmatter, the moderncanon of avoidance instructscourts to interpretstatutes to avoid serious constitutionalquestions if such an interpretationis "fairlypossi- ble."'147Although this canon is increasinglycontroversial, its standard justificationis relativelystraightforward.148 In the interestsof majoritariandemocracy and legislativesupremacy, federal courts must refrainfrom needlessly exercising their Marbury power to

145For an excellentdiscussion of the premisethat many administrative statutes effectively grantagencies common law powersto adapt broadlyarticulated policies to unforeseencir- cumstances,see Sunstein,47 Duke L Jat 1019 (cited in note 28). 146 A constitutionalpreference for more accountabledecision makingis of course the standardexplanation of Chevrondeference. See, forexample, Thomas W. Merrill,Judicial Deferenceto Executive Precedent, 101 Yale L J969, 978 (1992) ("In orderto make deference a generaldefault rule, the Court had to come up withsome universalreason why administra- tiveinterpretations should be preferredto the judgmentsof ArticleIII courts.Democratic theorysupplied the justification;agency decisionmaking is alwaysmore democraticthan judicialdecisionmaking because all agenciesare accountable(to some degree)to the Presi- dent,and the Presidentis elected by the people."); Pierce, 64 NYU L Rev at 1256 (cited in note 85) (Chevron'sreasoning reflects "an effortto reconcilethe administrativestate with principlesof democracy"). 147Crowell v Benson,285 US 22, 62 (1932) ("When the validityof an act of the Congress is drawnin question,and evenif a seriousdoubt of constitutionalityis raised, it is a cardinal principlethat thisCourt will firstascertain whether a constructionof the statuteis fairly possibleby which the question may be avoided.").Under classicalavoidance doctrine, courts were to construestatutes, if possible,to avoid a conclusionof unconstitutionality.See John C. Nagle, Delaware & HudsonRevisited, 72 Notre Dame L Rev 1495, 1498-1504 (1997) (describingclassical avoidance). The moderncanon, in contrast,focuses on interpretations that"would raiseserious constitutional problems." Edward J. DeBartoloCorp. v FloridaGulf CoastBldg & Constr.Trades Council, 485 US 568, 575 (1988). This paper uses "the canon of avoidance" or "the avoidancecanon" throughoutto referto the modem canon.

148The followingpoints are outlinedin HenryJ. Friendly,Benchmarks 211 (Univ of Chi- cago Press, 1967).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 253 hold statutesunconstitutional.149 This means that courts should never invalidatea statuteif a plausible alternativeinterpretation would sustainthe law.1soAnd if such a savingconstruction is available, courtsmust adopt it withoutfirst passing on the constitutional question; to do otherwisewould be to issue an advisory opinionon theConstitution's meaning.'15 Finally, by assumingthat Congress did not intendto "press into dangerousconstitutional thickets,"'152the Court also takesseriously the legislator'soath to the Constitution.1s3So understood,the canon is oftendefended as a doctrineof legislativesupremacy.154 Recent scholarship,however, has shownthat the legislativesu- premacyargument, at best,cuts two ways. It is truethat the Court has statedthat it will apply the canon of avoidanceonly when a statuteis "'susceptible'" of the savingconstruction,155ss and thatthe

149 See, forexample, Specter Motor Serv. v McLaughlin,323 US 101, 105 (1944) ("If there is one doctrinemore deeply rooted than any other in the processof constitutionaladjudica- tion,it is thatwe oughtnot to pass on questionsof constitutionality... unlesssuch adjudication is unavoidable.");Ashwander v TVA, 297 US 288, 346 (1936) (Brandeisconcurring) ("The Court [has] developed... a seriesof rulesunder which it has avoidedpassing upon a large part of all the constitutionalquestions pressed upon it fordecision."). 150 See, forexample, Siler v Louisville& NashvilleR. Co., 213 US 175, 191 (1909) ("[I]f a case can be decided on eitherof two grounds,one involvinga constitutionalquestion, the othera questionof statutoryconstruction or generallaw, the Court will decide only the latter."). 151 See, forexample, United States v Rumely,328 US 41, 48 (1953) ("Grave constitutional questionsare mattersproperly to be decidedby thisCourt but onlywhen theyinescapably come beforeus for adjudication.Until then it is our dutyto abstainfrom marking the boundaries of congressionalpower or delimitingthe protectionguaranteed by the [Constitution]."). 152 PublicCitizen, 491 US at 466. 153See Solid WasteAgency of Northern Cook County v U.S. ArmyCorps of Engineers, 121 S Ct 675, 683 (2001) ("This requirementstems from our prudentialdesire not to needlessly reach constitutionalissues and our assumptionthat Congress does not casuallyauthorize administrativeagencies to interpreta statuteto pushthe limitof congressionalauthority."); DeBartolo,485 US at 575 (notingthat the canon of avoidance"not onlyreflects the pruden- tial concernthat constitutional issues not be needlesslyconfronted, but also recognizesthat Congress,like th[e] Court, is bound by and swearsan oath to uphold the Constitution"). 154 See, forexample, William K. Kelley,Avoiding Constitutional Questions as a Three-Branch Problem,86 Cornell L Rev (2001) (forthcoming)(describing the legislativesupremacy justificationfor the canon of avoidance). 155Jones v UnitedStates, 526 US 227, 239 (2000) ("'[W]here a statuteis susceptibleof two constructions,by one of whichgrave and doubtfulconstitutional questions arise and by the otherof whichsuch questionsare avoided,[a court's]duty is to adopt the latter.'") (quoting UnitedStates ex relAttorney General v Delaware& HudsonCo., 213 US 366, 408 (1919)).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 254 THE SUPREME COURT REVIEW [2000 canon is "'not a license forthe judiciaryto rewritelanguage en- actedby the legislature.' "156 Still,these protestations hardly convey the fullpicture. As othershave noted,the canon of avoidancedoes no work unless used to depart fromthe most likelyor natural meaningof a statute.157Indeed, the Court itselfhas oftenrecog- nized that the avoidance canon may compel acceptance of a "strained"interpretation or, by the same token,rejection of the "most natural" reading of a statute.158Hence, in Professor Schauer'swords, the values servedby the avoidancecanon come at a "cost to whateversystemic values lead a constitutionallyunim- peded interpreterto interpreta statute one way rather than another."159 Indeed, criticsof the avoidancecanon suggestthat its cost to legislativesupremacy can be quite substantial.Schauer, for example, has arguedthat "it is by no means clear thata strainedinter- pretationof a federalstatute that avoids a constitutionalquestion is anyless a judicialintrusion than the judicial invalidation on con- stitutionalgrounds of a less strainedinterpretation of the same statute."'60More generally,Jerry Mashaw has invokedgame theory to suggestthat willfulmisconstruction, if anything,intrudes on legislativeprerogatives more severelythan outright invalidation of an unconstitutionalstatute.161 If the Court disturbsa legislative

156 UnitedStates v Monsanto,491 US 600, 611 (1989) (quoting UnitedStates v Albertini, 472 US 675, 680 (1985)). '57See, forexample, Feltner v ColumbiaPictures Television, Inc., 523 US 340, 358 (1998) (Scalia concurringin the judgment)(noting that "'[t]he doctrineof constitutionaldoubt does not requirethat the problem-avoidingconstruction be the preferableone,' " for that "'would deprivethe doctrineof all function'") (quotingAlmendarez-Torres v United States, 523 US 224, 270 (1998) (Scalia dissenting));Frederick Schauer, Ashwander Revisited, 1995 SupremeCourt Review 71, 88 ("[A]voidanceis onlyimportant in those cases in whichthe resultis differentfrom what the resultwould have been by applicationof a judge's or court'spreconstitutional views about how the statuteshould be interpreted."). "8 See, for'example,United States v X-CitementVideo, Inc., 513 US 64 (1994) (rejecting the "most natural,grammatical reading" of a statuteto avoid graveconstitutional doubt); Ullmanv UnitedStates, 350 US 422, 433 (1955) ("Indeed, the Court has statedthat words maybe strained'in the candidservice of avoidinga seriousconstitutional doubt.' ") (quoting Rumely,345 US at 47); see also, for example,Textile Workers Union v LincolnMills, 353 US 448, 477 (1957) (notingthat the canon of avoidance"is normallyinvoked to narrow whatwould otherwisebe the naturalbut constitutionallydubious scope of the language"); UnitedStates v Lovett,328 US 303, 329 (1946) (Frankfurterconcurring) ("'Words have been strained... to avoid thatdoubt.' "). "' Schauer, 1995 SupremeCourt Review at 82 (cited in note 157). 160Id at 74. 161JerryL. Mashaw, Greed,Chaos, and Governance105 (Yale Univ Press, 1997).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 255 outcome by invalidatinga statute,that action of course returns mattersto the prestatutorystatus quo. The legislaturemight well reenacta policy relativelyclose to the one invalidated,since the process of reenactment,like the originalenactment process, re- quires bargainingamong all threeconstitutionally relevant actors (the House, the Senate, and the President).162If, instead,a court misconstruesa statuteto avoid grave constitutionaldoubts, the misinterpretationwill remainin place if any one of those three actorsprefers it to the likelyoutcome of correctivelegislation.'63 In otherwords, the avoidance canon may enshrinea resultthat could not have been adopted ex ante. Perhaps most importantly, because the avoidancecanon is triggeredby constitutionaldoubt (ratherthan unconstitutionality), any such intrusionsupon the leg- islativeprerogative merely protect a constitutionalbuffer zone, ratherthan a definiteclaim of constitutionalright.164 Whetherthese (or other)criticisms of the avoidancecanon jus- tifyits generalabandonment is a matterfor anotherday.165 For

162See id. '63 See id at 102-03 (discussingthe game theoreticimplications of faultyinterpretation in general);see also RichardA. Posner,Statutory Interpretation-In the Classroom and Court- room,50 U Chi L Rev 800, 816 (1983) ("Congress'spractical ability to overrulea judicial decisionmisconstruing one of its statutes,given all the othermatters pressing for its atten- tion,is less todaythan ever before,and probablywas neververy great."). 164See Posner, 50 U Chi L Rev at 816 (cited in note 163) ("The practicaleffect of construingstatutes to avoid raisingconstitutional questions is thereforeto enlargethe al- readyvast reach of constitutionalprohibition beyond even the most extravagantmodem interpretationof the Constitution-to createa judge-madeconstitutional penumbra ... "). JusticeKennedy has voiced similarconcerns: [The canon of avoidance]should not be given too broad a scope lest a whole new range of Governmentaction be proscribedby interpretiveshadows cast by constitutionalprovisions that mightor mightnot invalidateit. The factthat a particularapplication of the clear termsof a statutemight be unconstitutional does not provideus with a justificationfor ignoringthe plain meaningof the statute.If thatwere permissible,then the power of judicial reviewof legislation could be made unnecessary,for whenever the applicationof a statutewould have potentialinconsistency with the Constitution,we could merelyopine thatthe statute did not cover the conductin questionbecause it would be discomfortingor even absurdto thinkthat Congress intended to act in an unconstitutionalmanner. PublicCitizen, 491 US at 481 (Kennedyconcurring in the judgment). 165For recentcritiques of the canon of avoidance,see, for example,Kelley, 86 Cornell L Rev (forthcoming)(cited in note 154) (arguingthat applyingthe canon of avoidance to administrativestatutes ignores the lessons of Chevronand undervaluesthe executive's independentconstitutional duty under Article II, ? 3 to "take Care thatthe Laws be faith- fullyexecuted"); Adrian Vermeule, Saving Constructions, 85 Geo L J 1945, 1959-64 (1997) (arguingthat the modem canon of avoidanceand the doctrineof severabilityare in tension with each otherboth in purposeand effect).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 256 THE SUPREME COURT REVIEW [2000

presentpurposes, it sufficesto note thatthe doctrinedoes not un- ambiguouslyserve legislativesupremacy, as its defenderssome- timescontend. Rather, it seems more accurateto suggestthat it entailsa trade-off.The Court sacrificesthe most likelyor natural meaningof a statutein orderto advanceextrastatutory values that have an uncertainconstitutional pedigree but come close enough to the constitutionalboundary to justifyprotection (at least in the Court's view).166In most contexts,the meritsof this practiceare at least debatable.If the Court narrowsthe broad termsof the National Labor RelationsAct to avoid a seriousFirst Amendment question,16it maywell unsettlean apparentlegislative outcome. In so doing,however, the Courtpromotes a competingconstitutional interest.In such cases,there are constitutionalvalues on bothsides of the ledger. Whateverthe proper resolutionof this trade-offgenerally, in the specificcontext of avoidingnondelegation concerns, the calcu- lus is different.The nondelegationdoctrine, as noted,seeks to protect the constitutionalvalues embodiedin ArticleI-specifically, that Congress sets legislativepolicy and that such policy passes throughthe filterof bicameralismand presentmentprescribed by ArticleI, Section 7. As discussed,if the Court altersthe meaning of an open-endedstatute in orderto avoidnondelegation concerns, it apparentlydisturbs whatever choice or compromisehas emerged fromthat process. This createsthe perverseresult of attempting to safeguardthe legislativeprocess by explicitlydisregarding the resultsof thatprocess.'68 In otherwords, artificially narrowing a statuteto avoid nondelegationconcerns is at best self-defeating.169

166 See, for example,Sunstein, 67 U Chi L Rev at 331 (cited in note 5) (defendingthe canon of avoidanceas a means "to promotesome goal witha constitutionalfoundation"); Vermeule,85 Geo L J at 1963 (citedin note 165) (notingthat the moderncanon of avoidance "is a meansof overprotectingconstitutional values throughstatutory interpretation"); ErnestA. Young, ConstitutionalAvoidance, Resistance Norms, and thePreservation of Judicial Review,78 Tex L Rev 1549, 1587 (2000) (notingthat the avoidancecanon does not further legislativeintent, but "protectsthe constitutionalvalues embodied in the provisionthat createsthe constitutional'doubt'"). 167 See DeBartolo,485 US at 575-76 (applyingNLRA's broad termsto ban peaceful, truthfulleafleting would raise a seriousconstitutional question). 168 See Bressman,109 Yale L Jat 1415 (cited in note 80) ("[T]o applyinterpretive norms in such cases would frustrateCongress's intent."). 169 Indeed, the avoidanceof seriousnondelegation questions is not merelyself-defeating, but is a net detrimentto the values soughtto be preserved.Avoidance of nondelegation questions,as discussed,disturbs the outcomeof the legislativeprocess. By definition,however,such avoidanceis sometimes-but not always-necessaryto avoid an unconstitutional

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The resultinginterpretation reflects judicial, rather than legislative,lawmaking. To enforcethe nondelegationdoctrine through the canon of avoidance,then, contradicts the structureof Article I. To paraphraseJustice Scalia's remarkson a differentsubject, it is using the disease as cure.170 It is unnecessaryto take a positionhere on whetherthe Court should"revive" the nondelegation doctrine as a doctrineof judicial reviewor simplypermit its continueddisuse, as some of its recent cases have suggested.171But if the Court is going to enforcethe nondelegationdoctrine, it shouldnot employthe avoidancecanon to do so.172It should displacea dulyenacted statute only if it con- cludesthat such statutehas effectedan unconstitutionaldelegation, not a potentiallyunconstitutional delegation. The avoidancecanon of coursedoes seek to sidestepthe practi- cal concernsthat make the Courtunwilling to enforcethe nondelegationdoctrine directly. Those concerns,however, do not cut de- cisivelybetween avoidance and Marbury-stylejudicial review. First, the Court's frequentlyexpressed concerns about legislative(and,

delegation.Therefore, the certaindetriment to the legislativeprocess that flows from avoidance correspondsto an uncertainbenefit of avoidingwhat mightor mightnot ultimately be an unconstitutionaldelegation. 170See AntoninScalia, The Diseaseas Cure, 1979 Wash U L Q 147 (1979). 171 See, forexample, Whitman v AmericanTrucking Ass'ns, Inc., 121 S Ct 903, 913 (2001) ("In the historyof thisCourt we have foundthe requisite'intelligible principle' lacking in onlytwo statutes,one of whichprovided literally no guidancefor the exerciseof discretion, and the otherof which conferred authority to regulatethe entireeconomy on thebasis of no more precisea standardthan stimulatingthe economyby promoting'fair competition.' "). 172 In thiscontext, Jerry Mashaw's observations make particularly clear that outright inval- idationwould betterserve the interestsimplicit in bicameralismand presentment.Consider the followingexample: If the Court narrowsthe OSH Act by requiringa thresholdfinding of "significantrisk," that judicially imposed policy will be immunefrom legislative correction if the House, the Senate,or the Presidentprefers that result to the likelyoutcome of the fulllegislative process. Conversely, if the Court were to declarethe OSH Act unconsti- tutionalon nondelegationgrounds, that action would triggera processthat directly serves the interestsof the nondelegationdoctrine. By hypothesis,there is no questionabout the constitutionalityof the underlyingpolicy objective (workplace safety), merely the manner of its articulation.If judicialinvalidation were to returnmatters to the pre-OSH Act status quo, then the House, the Senate, and the Presidentwould have an incentiveto tryagain to bargainover an acceptable(but more specific)policy that all threeprefer to the pre- Act statusquo. If thatprocess is successful,more precisepolicies will have passed through the filterof bicameralismand presentment,thereby addressing nondelegation concerns. If, however,the threerelevant entities cannot agree on a more precisestatute, that result also servesthe interestsof bicameralismand presentment,which aim in partto filterout laws thatcannot secure the assentof the threeconstitutionally specified actors. In short,whereas usingthe avoidancecanon disservesthe goals of bicameralismand presentment,invalidation in appropriatecircumstances would advance those goals.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 258 THE SUPREME COURT REVIEW [2000 more generally,governmental) flexibility go to the strictnesswith which the Court enforcesthe nondelegationdoctrine, not to whetherit enforcesthat doctrine through avoidance or judicialreview. Second, with respectto concernsabout the judicial admin- istrabilityof the nondelegationdoctrine, the avoidancecanon of- fersno meaningfuladvantage. The administrabilityproblem arises because thereis no reliablemetric for identifying a constitutionally excessivedelegation. Yet thereis no betterway to identifywhether a statutepresents a sufficientlyserious nondelegation question to triggerthe canon of avoidance.In the judicialreview context, the Court must draw a line between constitutionaland unconstitu- tionaldelegations. In the contextof avoidance,it mustdraw a similar line between questionableand nonquestionabledelegations. Both turnon unquantifiablequestions of degree.The move from judicial reviewto avoidancedoes not eliminatethe difficultiesin judicial line-drawing;it simplymoves the line."73 Even if the canon of avoidancedisserves nondelegation interests in a particularcase, one mightconclude thatit servesa systemic interestin nondelegationby signalingCongress that overbroad statuteswill be narrowedby the judiciary.Where the canon does not apply,Chevron authorizes relatively accountable administrative agenciesto fleshout themeaning of broad or open-endedstatutes. In contrast,by allowingjudges to specifythe meaningof the same open-endedterms, the avoidancecanon shiftslaw elaborationau- thorityto relativelyinsulated Article III courts.174 Congresshas in its arsenalmany ways of influencingthe mannerin whichagencies performtheir functions but relativelyfewer methods of influencing the federaljudiciary in its dispositionof particularcases or contro-

173This claim does not contradictProfessor Sunstein's more generalpoint that,in most contexts,applying the canon of avoidanceto narrowan administrativestatute will not raise the same administrabilityconcerns as directenforcement of the nondelegationdoctrine. See Sunstein,67 U Chi L Rev at 338 (citedin note 5). Consider,for example, the decision to construethe broad termsof the NRLA narrowlyto avoid a seriousFirst Amendment question.In such a case, the Court "do[es] not ask the hard-to-managequestion whether the legislaturehas exceededthe permissiblelevel of discretion,but pose[s] insteadthe far more manageable question whetherthe agencyhas been given the discretionto decide somethingthat (under the appropriatecanon) onlylegislatures may decide." Id. But when the canon of avoidance is invokedto avoid a serious question under the nondelegation doctrineas such,the hard-to-manageline-drawing questions return because the underlying constitutionalquestion irreducibly involves matters of degree. 174See US Const, Art III, ? 1 (assuringlife tenureand salaryprotection during "good Behaviour").

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 259 versies.175Hence, if passing an overbroadstatute will effectively shiftlaw elaborationauthority from agencies to courts,Congress mayhave a marginalincentive to supplythe statutorydetails itself, ratherthan cedingthat authority to courtsthat are less amenable to its control. This argumentis serious,but ultimatelyunavailing. As I have argued elsewhere,because Congress cedes substantialpolicy- makinginitiative to administrativeagencies when it enactsopen- endedrather than precise statutes, it alreadyhas a significantstruc- tural incentiveto specifystatutory policies."176 The separationof powers,by prohibitingCongress fromexercising direct control overagency lawmaking,177' operates in effectas a structuralnondel- egation doctrine.178Even if the judicial specificationof statutory meaningwould marginallyincrease the resultingincentives for clarity,179this effectwould not be meaningful,at least if it is restrictedto cases raisingserious nondelegation concerns. As noted, the triggerfor the canon of avoidancein nondelegationcases (a seriousquestion about excessivestatutory breadth) is impossibleto quantify.And federalcourts do not frequentlyinvoke the avoidance canon in the nondelegationcontext. Thus, it is speculative, at best,to suggestthat Congress would have a systemicincentive to legislatemore preciselybecause it faced an unpredictablerisk, in extremecases, of cedinglaw elaborationpower to judges rather than agencies. What is certainis that when the Court applies the canon of

175Congress exercisesmore effectivecontrol over administrativeagencies than over the judiciary.See Landes and Posner, 18 J L & Econ at 879 (cited in note 129). It can more readilycut agencybudgets, subject agency officials to discomfitingoversight hearings, and refuseto confirmor reconfirmtop agencyofficials. See RichardA. Posner,Theories of Eco- nomicRegulation, 5 Bell J Econ & Mgmt Sci 335, 338 (1974); BarryR. Weingastand Mark J. Moran, BureaucraticDiscretion or CongressionalControl? Regulatory Policymaking by the Fed- eral Trade Commission,91 JPol Econ 765, 769 (1983). In contrast,Congress has relatively ineffectivetools at its disposalto disciplinejudges who do not construestatutes to theliking of itsmembers. See JonathanR. Macey,Promoting Public-Regarding Legislation Through Stat- utoryInterpretation: An InterestGroup Model, 86 Colum L Rev 223, 260-61 (1986). 176See Manning,97 Colum L Rev at 711-14 (cited in note 21). 177 See WashingtonMetropolitan Airports Authority v Citizensfor theAbatement of Aircraft Noise,Inc., 501 US 252 (1992); Bowsherv Synar,478 US 714 (1986); INS v Chadha,462 US 919 (1983). 178See, for example,Richard J. Pierce,Jr., Political Accountability and DelegatedPower: A Responseto ProfessorLowi, 36 Am U L Rev 391, 413-14 (1987). 179See Manning,97 Colum L Rev at 712 (cited in note 21).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 260 THE SUPREME COURT REVIEW [2000 avoidanceto furthernondelegation objectives, it altersthe enacted termsof an administrativestatute in the interestof promotingleg- islativeresponsibility and preservingthe integrityof the legislative process. It is equally clear that this practice,in contrastwith straightforwardjudicial review,makes it less likelythat Congress will ever clarifyits unconstitutionallyvague policies throughthe processesof bicameralismand presentment.Because applicationof the avoidancecanon in thenondelegation context is thereforeboth self-contradictoryand self-defeating,the Court should rethinkits practice of enforcingthe nondelegationdoctrine throughthis means.

III. BROWN & WILLIAMSON AND THE CANON OF AVOIDANCE

Brown & Williamsonnot only highlightsconcerns about treatingthe nondelegationdoctrine as a canon of avoidance,but also suggestsa morelegitimate basis for using statutory interpretation to enforcenondelegation principles. As discussed,in denying the FDA jurisdictionover tobacco,the Court reliedexclusively on the implicationsof later-enactedtobacco statutes.It did so in two respects.First, relying heavily on the legislativehistory accompa- nyingpost-FDCA legislation,the Court concludedthat such legislation evinced an intentionto ratifythe FDA's long-standing positionthat it lackedtobacco jurisdiction. Second, the Courtcon- cluded that these post-FDCA statutesimpliedly foreclosed FDA jurisdictionby adoptinga comprehensiveand detailedlegislative scheme of tobacco regulation. Althoughthe Court conflatedthe two strandsof analysis,they representquite distinctapproaches. The ratificationarguments ul- timatelyrepresent an unconvincingaccount of legislativeintent, one that the Court almostsurely would have rejectedin the absence of nondelegationconcerns. The Court's ratificationanalysis thus dramaticallyillustrates the double-edgedlegislative process concernsthat arise when the Court uses avoidance to vindicate nondelegationprinciples. In contrast,by denyingthe FDA authorityto invokeits open-endedauthority to disturbthe balance struck by Congress in explicittobacco legislation,the Court arguably promoted the interestsof bicameralismand presentment.Al- thoughthe FDA mightotherwise have enjoyedstatutory authority under the FDCA to craftits own solution,nondelegation princi-

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 261 ples suggestthat such a solutionshould give way when Congress has itselfspoken directlyto the very questions that the agency seeks to address.Such reasoningdoes not appear to reston infer- ences of affirmativelegislative "intent" to precludeagency authority;rather, it merelysuggests that a settledcanon of statutoryinterpretation-thespecific governs the general-in factpromotes the same interestas the nondelegationdoctrine. I considerthese aspectsof the Court's opinion in turn.

A. RATIFICATION AND THE AVOIDANCE OF NONDELEGATION CONCERNS

To implementits avoidancestrategy, the Court relied heavily on postenactmentlegislative history to hold thatCongress had ratifiedthe FDA's (once) long-standingposition on tobacco jurisdiction. Relyingprimarily on statementsmade by administrationof- ficialsin hearingson the post-FDCA tobacco statutes,the Court noted thatCongress had passed those laws "againstthe backdrop of the FDA's consistentand repeatedstatements that it lackedau- thorityunder the FDCA to regulatetobacco."'10 This pattern,in turn,established that Congress had "ratifiedthe FDA's long-held position.""81In addition,the Court attachedfurther significance to the factthat, in the same period,Congress repeatedly "considered and rejected bills that would have grantedthe FDA . . . jurisdiction."'82 In the absence of backgroundnondelegation concerns, it is highlyunlikely that the majoritywould have relied on such evidence to determinethe FDCA's meaning-and with good reason.'83Except in narrowcircumstances, the Court now regards ratificationand acquiescence argumentswith suspicion. Classic ratificationoccurs when Congressreenacts (or importsinto a new statute)a phrasethat an agencyor the judiciaryhas authoritatively construed;in thatcontext, the settledinterpretation merely offers a plausiblepoint of referencefor understanding the technicalim-

18oBrown & Williamson,529 US at 144. 181Id. 182Id. 183For a thoughtfulcritique of the ratificationargument as appliedto the FDA's tobacco jurisdiction,see Sunstein,47 Duke L J at 1046-50 (cited in note 28).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 262 THE SUPREME COURT REVIEW [2000 port of the reenactedterms.184 Although the Court has sometimes also inferredlegislative ratification when Congress extensively amends a statutewithout disturbing the settledinterpretation of a particularphrase,'8" all fiveJustices in the Brown& Williamson majorityrecently emphasized that this interpretive practice rests on mistakenassumptions about the legislative process.'"1 The com- plexitiesof thatprocess make it difficultif not impossibleto know whyCongress has failedto disavowan agency'sinterpretation of a statute.The precisequestion may not have been on thelegisla- tiveradar; the leadershipmay have had otherpriorities; or perhaps the "correction"had insufficientsupport in a particularHouse or on a particulargatekeeping committee. Thus, even in the context of a statute'samendment, Congress's failure to "correct"a settled interpretationcannot be equated with an affirmativeintention to ratifythat interpretation."87 184See, for example,Bragdon v Abbott,524 US 624, 644 (1997) ("When administrative and judicialinterpretations have settledthe meaning of an existingstatutory provision, repe- titionof the same language in a new statuteindicates, as a generalmatter, the intentto incorporateits administrativeand judicial interpretationsas well."); Lorillardv Pons,434 US 575, 579 (1978) ("Congress is presumedto be aware of an administrativeor judicial interpretationof a statuteand to adopt thatinterpretation when it re-enactsa statutewithout change ... .") 185See, forexample, Herman & MacLeanv Huddleston,459 US 375, 384-85 (1983) (infer- ring ratificationof cumulativeinterpretation of Section 10(b) of the SecuritiesExchange Act of 1934 when Congressextensively revised securities laws withoutchanging that provision); Lykesv UnitedStates, 343 US 118, 127 (1951) ("Such a [Treasury]regulation is entitledto substantialweight. ... Since thepublication of thatTreasury Decision, Congresshas made manyamendments to the InternalRevenue Code withoutrevising this administrative interpretation. ..."). "86See CentralBank of Denver,NA v FirstInterstate Bank of Denver,NA, 511 US 164, 185-87 (1994) (Kennedy,joined by Rehnquist,O'Connor, Scalia, and Thomas); see also, forexample, Wells v UnitedStates, 519 US 482, 495-96 (1997) (notingthat claims of ratifi- cationwere weak even thoughCongress had repeatedlyamended a statutewithout "touch- ing" the language thathad been construed). 187The Court has reasoned: It does not follow. .. thatCongress' failure to overturna statutoryprecedent is reason forthis Court to adhereto it. It is "impossibleto assertwith any degree of assurancethat congressional failure to act represents"affirmative approval of the [courts']statutory interpretation .... Congressmay legislate,moreover, only throughthe passage of a bill whichis approvedby both Houses and signed by the President.U.S. Const.,Art. I, ? 7, cl. 2. Congressionalinaction cannot amend a duly enactedstatute. See CentralBank ofDenver, 511 US at 186 (quotingPatterson v McLean CreditUnion, 491 US 164, 175 n 1 (1989), whichquoted, in turn,Johnson v TransportationAgency, Santa Clara County,480 US 616, 672 (1987) (Scalia dissenting)).Importantly, this reasoning relied on and extendedPatterson's conclusion that Congress does not acquiescein a judicialor administrativeinterpretation simply by leavingit intactover time.Whereas Pattersonapplied that

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The Court's relianceon post-FDCA historyin Brown& Wil- liamsonextends even the more questionableversion of the ratification doctrine.The post-FDCA legislationdid not reenact,amend, or in anyway addressthe FDCA's jurisdictionallanguage. Rather, Congressmerely passed distincttobacco statutesin lightof legislativehistory suggesting that such legislationwas necessaryand ap- propriatebecause of theFDCA's narrowscope. Far fromsatisfying any criteriafor ratification, such evidenceis simplypostenactment legislativehistory. For good reason,however, the Court generally refusesto treata subsequentCongress's interpretation of a statute as meaningfulevidence of an earlierCongress's intent."188When subsequentlegislation enacts language expressly approving a par- ticularinterpretation, the Court of course treatssuch explicitdi- rectionsas authoritative.189But whenthe Court merelyenacts new legislationbased on a particularassumption about an earlierstat-

insightto Congress'ssimple failure to act, CentralBank of Denver extended it to Congress's failureto act in the contextof a statutoryamendment. Although acknowledging that its precedentswere unevenon the question,the Court emphasizedits presentview thatargu- mentsultimately predicated on legislativeinaction "deserve little weight." Central Bank of Denver,511 US at 187. For a differingview of congressionalinaction, see, for example, Strauss,1994 SupremeCourt Reviewat 512-13 (citedin note 21) (arguingthat legislative silence is a meaningfulsignal in the developmentof a consensuson statutorymeaning throughthe cooperativeinteraction of Congress,agencies, and the courtsover time). 188 See, forexample, Reno v BossierParish School Dist., 520 US 471, 484-85 (1997) ("Our ultimateconclusion is also not undercutby statementsfound in the 'postenactmentlegislative record,'. . . given that 'the views of a subsequentCongress forma hazardousbasis for inferringthe intentof an earlierone.'") (quoting UnitedStates v Price,361 US 304, 313 (1960)); Mackeyv LanierCollection Agencies, 486 US 825, 840 (1988) ("[T]hese views- absentan amendmentto the originallanguage of the section-do not directour resolution of this case. Instead,we must look at the language of [the statute]and its structure,to determinethe intentof the Congressthat originally enacted the provisionin question.'It is the intentof the Congressthat enacted [the section] ... thatcontrols.' ") (quotingTeam- stersv UnitedStates, 431 US 324, 354 n 39 (1977)); Haynesv UnitedStates, 390 US 85, 87 n 4 (1968) ("The views of a subsequentCongress of course provideno controllingbasis fromwhich to inferthe purposesof an earlierCongress."). 189 For example,in Red Lion BroadcastingCo., Inc. v FCC, 395 US 367, 369, 380 (1969), the Court held thatCongress had subsequentlygiven "explicit recognition" to the FCC's fairnessdoctrine. Through thatdoctrine, the FCC had implementedthe Communications Act of 1934's "public interest"standard by requiringbroadcasters to providediscussion of publicissues and to ensurethat both sides of an issuereceived fair coverage. When Congress amendedthe Act to compel broadcastersto give equal timeto politicalcandidates, it stated thatthe amendmentleft intact "the obligationsimposed upon themunder this Act to oper- ate in the publicinterest and to affordreasonable opportunity for the discussionof conflict- ing viewson issues of public importance."Act of Sept 14, 1959, ? 1, 73 Stat 557, 557. In those circumstances,the amendmentexplicitly "vindicated the FCC's generalview thatthe fairnessdoctrine inhered in the public intereststandard." Red Lion, 395 US at 380.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 264 THE SUPREME COURT REVIEW [2000 ute's meaning,that understandinghas littlesignificance, particu- larlywhen it is merelyreflected in the legislativehistory.190 Simply put,enacting a statutebased on an assumptionabout law does not amountto enactingthat assumption.191 Quite apart fromthis generalpoint, moreover, Brown & Wil- liamsonnowhere established that a legislativemajority embraced the FDA's narrowposition as the correctinterpretation of the FDCA. Most of theCourt's evidence involved administration testimonyat legislativehearings on the post-FDCA tobacco statutes.192 Althoughthe Court has sometimesrelied on such testimonyto informthe meaningof a bill (specifically,when the administration has draftedthe relevantlanguage),193 there is good reason to ques-

190 See, forexample, Public Employees Retirement System of Ohio v Betts,492 US 158, 167- 68 (1989) (rejectingan interpretationof the Age Discriminationin EmploymentAct found in legislativehistory accompanying amendments because the amendmentsdid not modify the languagebeing interpreted);CPSC v GTE Sylvania,Inc., 447 US 102, 118 n 13 (1980) (refusingto credita "mere statementin a conferencereport of [subsequent]legislation as to what the Committeebelieves an earlierstatute meant"); Rainwater v UnitedStates, 356 US 590, 593 (1958) (holdingthat when a statutoryamendment suggests an implicitunder- standingof priorlegislation, that amendment "is merelyan expressionof how the [subsequent] Congressinterpreted a statutepassed by anotherCongress," and "such interpretation has verylittle, if any significance").This premisenow holds even when a committee of Congressinterprets a priorstatute during the course of thatstatute's reenactment. See Piercev Underwood,487 US 552, 566 (1988) ("[I]t is the functionof the courtsand not the Legislature,much less a Committeeof one House of the Legislature,to saywhat an enacted statutemeans."). 191Indeed, the validityof legislationdoes not remotelydepend on the correctnessof any assumptionsthat underlayits enactment.See Paris Adult TheatersI v Slaton,413 US 49, 61 (1974) ("From the beginningof civilizedsocieties, legislators and judges have acted on variousunprovable assumptions. Such assumptionsunderlie much lawfulstate regulation of commercialand businessaffairs."). Of course,legislative assumptions may illuminate the meaningof an ambiguousstatutory term. In Brown& Williamson,however, the Court did not use Congress'sassumptions to informany particularlanguage in the six post-FDCA tobacco statutes;rather, it reasonedthe mere enactmentof those statutesgave legal force to Congress'sdisembodied, general assumptions about the stateof the law. 192See Brown& Williamson,529 US at 144-61. 193See, for example,United States v SellsEngineering, 463 US 418, 439 (1983) ("In any event,we thinkthe most reliable evidenceof what Congress in 1977 understoodto be standardDepartment practice was whatThornburgh, the Department'sofficial representa- tive at the Hearings,stated it to be."); UnitedStates v VogelFertilizer Co., 455 US 16, 31 (1982); Zuberv Allen,396 US 168, 192 (1969). In general,the Court gives testimonyat legislativehearings little weight. See, for example,Kelly v Robinson,479 US 36, 51 n 13 (1984) (decliningto "accord any significance"to statementsmade in hearingswhen "none of those statementswas made by a Member of Congress,nor were theyincluded in the officialSenate and House Reports");Ernst & Ernstv Hochfelder,425 US 185, 204, n 24 (1976) ("Remarksof this kind made in the course of legislativedebate or hearingsother thanby personsresponsible for the preparationor the draftingof a bill are entitledto little weight");S & E Contractors,Inc. v UnitedStates, 406 US 1, 13 n 9 (1972) ("In construing laws [the Court has] been extremelywary of testimonybefore committee hearings and of debateson the floorof Congresssave forprecise analyses of statutoryphrases by the spon-

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 265 tion the probativenessof the administrationtestimony relied on in Brown& Williamson.Even assumingthat a requisitemajority of Congresswas awareof the testimonydisclaiming FDA jurisdiction over tobacco, thereis no reason to assume that those legislators agreedwith the FDA. Because the administration'sremarks on the FDCA did not purportto explainthe meaningof any provision in the post-FDCA legislation(but ratheroffered background reasons for enactingit), legislatorshad no occasion to forma view about its correctnessin decidingwhether to vote forsuch legislation. Rather,to justifyvoting for the post-FDCA tobacco legislation,legislators simply had to concludethat the FDA had plausibly disclaimedjurisdiction over a problemthought to require atten- tion.194In the administrativecontext, where an agency'sposition may reflectone of severalpermissible readings of the statute,this premisehas particularforce.195 In the absence of any indication sors of the proposedlaws."); McCaughnv HersheyChocolate Co., 283 US 488, 493-94 (1931) ("Nor do we thinkof significancethe fact. .. thatstatements inconsistent with the conclusion whichwe reachwere made to committeesof Congressor in discussionson the floor of the Senate by senatorswho were not in chargeof the bill. For reasonswhich need not be restated,such individualexpressions are without weightin the interpretationof a statute."); Reed Dickerson,Statutory Interpretation: Dipping into Legislative History, 112 Hofstra L Rev 1125, 1131 (1983) ("What is said at [committee]hearings is usuallyso unreliable, even when it appearsto make good sense, thatcourts should pay littleheed to it, except possiblyfor confirmatory purposes."). Since the rise of moderntextualism, the Court had decreasedits relianceon committeehearings. See William N. Eskridge,Jr. and Philip P. Frickey,Cases and Materialson Legislation774 (West, 2d ed 1995). 194See Brown& Williamson,529 US at 182 (Breyerdissenting) (noting that the postenactmentlegislative history "can be read eitheras (a) 'ratif[ying]'a no-jurisdictionassumption oras (b) leavingthe jurisdictional question just where Congress found it") (citationomitted). 195Administrative agencies presumptivelyhave the authorityto change theirpositions providedthat theyoffer a reasonedexplanation for the change. See ChevronUSA, Inc. v NRDC, Inc.,467 US 837, 863 ("An initialagency interpretation is not instantlycarved in stone.").Thus, evenin the contextof classicratification, the Court has indicatedthat ratification connotesan acceptanceof the agency'sposition as legitimate,not the adoptionof the agency'sposition as the onlylegitimate interpretation of a statute.See, for example, Motor VehicleMfrs Ass'n v State Farm Mutual Auto Ins Co., 463 US 29, 45 ("[E]ven an unequivocalratification-short of statutoryincorporation- . . . would not connote ap- provalor disapprovalof an agency'slater decision to rescind[a] regulation.");Trans World Airlines,Inc. v Hardison,432 US 63, 75 n 10 (1977) (notingthat when Congress has ratified an administrativeinterpretation through positive legislation, that interpretation "is entitled to some deference,at leastsufficient . .. to warrantour acceptingthe guidelineas a defensi- ble construction");Udall v Boesche,373 US 472, 483 (1963) ("The conclusionis plain that Congress,if it did not ratifythe Secretary'sconduct, at leastdid not regardit as inconsistent withthe . . . Act."). Because the ratificationdoctrine typically arises in the contextof de- fendingadministrative interpretations, invocation of that doctrinerarely even poses the questionwhether ratification precludes an agencyfrom changing its position.But see, for example,Telecommunications Research & ActionCenter v FCC, 801 F2d 501, 517 (DC Cir 1986) ("We do not believe that language adopted in 1959 made the fairnessdoctrine a bindingstatutory obligation; rather, it ratifiedthe Commission'slongstanding position that

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 266 THE SUPREME COURT REVIEW [2000 thatkey legislators or committees(much less Congressas a whole) agreed with,rather than merelyunderstood, the administration's testimonyabout the FDCA, that testimonycannot supportthe Court's rejectionof the FDA's subsequentchange in position.196 Finally,the Courtwas mistakenin relyingon Congress'sfailure to enact statutesgranting the FDA jurisdictionover tobacco.The Court has recentlyemphasized that "[f]ailed legislativeproposals are 'a particularlydangerous ground on whichto restan interpretationof a priorstatute.' ""97 In particular,the Court has refused to treatthe failureto pass legislationas evidenceof legislativeac- quiescence in a regulatorypractice that the proposalwould have

the public intereststandard authorizes the fairnessdoctrine."), cert denied,482 US 519 (1987). 9"6To be sure, the Court cited a small numberof statementsby individuallegislators agreeingwith the administration'sposition, but those remarksare too sporadicand indefi- nite to supportany inferencethat Congress affirmativelyaccepted the FDA's position. Specifically,the Court cited only threeexamples of legislativestatements relating to post- FDCA tobacco bills. See Brown r Williamson,529 US at 150-51, 154-55. First,in passing the Public Health CigaretteSmoking Act of 1969, Pub L No 91-222, which banned certaincigarette advertisements and strengthenedwarning label requirements,Congress extended an existing prohibitionagainst any other required cigarette labeling. See ? 5(a), 84 Stat 88. In connectionwith that legislation,the chairmanof the responsible House committeeremarked that "the Congress-the body elected by the people-must makethe policydeterminations involved in thisdetermination-and not some agencymade up of appointedofficials." 116 Cong Rec 7920 (1970) (Rep Staggers).This open-ended statement,made in thecontext of a specificprohibition on agency-imposedlabeling requirements,hardly supports the more generalconclusion that Congress intended to adopt the FDA's narrowview of its tobacco jurisdiction. Second, when Congresseliminated the ConsumerProduct Safety Commission's authorityover tobacco in the ConsumerProduct Safety Commission Improvements Act of 1976, Pub L No 94-284, ? 3(c), 90 Stat 503, codifiedat 15 USC ? 1261(f)(2),a separatestatement to a Senate Report explainedthat the statute"unmistakably reaffirm[ed] the clear mandateof Congressthat the basic regulationof tobacco and tobacco productsis governed by ... legislation. . . and that any furtherregulation . . . must be reservedfor specific congressionalaction." S Rep 251, 94th Cong, 1st Sess 43 (1975) (Sens Hartke,Hollings, Ford, Stevens,and Beall). Puttingto one side the factthat this legislationdealt withthe CSPC (ratherthan the FDA), it is noteworthythat these Senatorswere obliged to issue theirviews as a separatestatement; this may suggestthat such viewswere not sharedby the relevantcommittee, much less by Congressas a whole. Third, in connectionwith the ComprehensiveSmoking Education Act, Pub L No 980474, 98 Stat2200 (1984), SenatorHawkins argued that legislation was necessarybecause "[u]nderthe [FDCA], Congressexempted tobacco products."130 Cong Rec 36953. The statementof an individuallegislator in the contextof a floordebate carrieslittle weight in interpretation. I cite these examplesnot to establishthe contentsof the legislativehistory, but merely to show that the evidenceof legislativesentiment relied on by the Court was sparse and highlyattenuated. 197Central Bank ofDenver, 511 US at 187 (quotingPension Benefit Guaranty Corporation v LTV Corp.,496 US 633, 650 (1990)).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 267 repudiated.198The Court'sreluctance is rooted in commonsense understandingofthe legislative process: "A billcan be proposed forany number of reasons, and it can be rejectedfor just as many others."'99Hence, little can be gleanedfrom Congress's failure to passlegislation granting the FDA authorityover tobacco. Ifthe Court would otherwise regard the postenactment legislativehistory of the FDCA as an unreliableindicator of statutory meaning,ithardly serves nondelegation interests to givesuch his- torydeterminative weight. The Court'sunwarranted extension of an alreadyquestionable version of the ratification doctrine raises similarconcerns. If, in fact, the FDCA is broadenough to encom- passtobacco (in lightof theFDA's specificfindings), one must acknowledgethat the Court's interpretive method effectively re- wroteCongress's command. It replaceda broadstatute with a narrowerstatute, one of the Court's, and not Congress's, design. Takingsuch steps as a meansto enforce nondelegation interests- specifically,to ensure legislative responsibility for policy decisions-wastherefore self-defeating.

B. STATUTORY COHERENCE AS A NONDELEGATION DOCTRINE Althoughmy conclusions here are more tentative, a second as- pect of Brown& Williamson'sreasoning may suggest a moreprom- ising interpretivestrategy-enforcing nondelegation interests throughthe traditionalcanon of readingmore generalstatutory commandsin lightof morespecific ones. Althoughthe Court prin- cipallyrelied on the post-FDCA tobacco legislationto supportan (unwarranted)inference of legislativeratification, the Court also emphasizedthat this legislation had, in fact,crafted a "specificleg- islativeresponse to the problemof tobacco and health."200In this connection,the Court appliedthe establishedprinciple that judges should promote coherence among statutespassed at different times,in partby readingthe FDCA's generalauthority in lightof the more specificcommands in the post-FDCA statutes:

198See Solid WasteEngineers of Cook County v ArmyCorps of Engineers, 121 S Ct 675, 681 (2001). 199 Id. 200 Brown& Williamson,529 US at 157.

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Atthe time a statuteis enacted,it may have a rangeof plausible meanings.Over time,however, subsequent legislation can shapeor focusthose meanings. The "classicjudicial task of reconcilingmany laws over time and gettingthem to 'make sense'in combination,necessarily assumes that the implications of a statutemay be alteredby the implications of a laterstatute."This is particularlyso where the scope of an earlierstatute is broadbut the subsequent statutes more specifically addressthe topic at hand.2"' Given the detailedregulatory regime established by the six post- FDCA tobacco statutes,the Court found that Congress had "specificallyaddressed the questionat issue"-that is, the appropriate level of tobacco regulation.202And it suggestedthat this specificlegislative regime for tobacco effectivelysuperseded the FDA's backgroundauthority to regulatethe same subjectmatter differently. In 1965, the FCLAA adopted a preciselydefined requirement that cigarettemanufacturers affix a specificwarning label on all cigarettepackages.203 The statuteexplicitly sought to balance the competinggoals of ensuring"that the publicbe informedthat cigarettesmoking may be hazardousto health"and protecting"com- merce and the national economyto the maximumextent."204 It furtherprovided that "[n]o statementrelating to smokingand health,other than the statementrequired by . . . this Act, shall be requiredon any cigarettepackage."205 Although the FCLAA's prohibitionagainst additional labeling requirements was to sunset on July 1, 1969,206 the Public Health CigaretteSmoking Act of 1969 extended it indefinitely.207In the same Act, Congress amendedthe FCLAA not onlyto strengthenthe labelingrequire- ment,but also to ban all cigaretteadvertisements "on anymedium of electroniccommunication subject to the jurisdictionof the [FCC]."208 In 1984, Congressagain modifiedthe requiredwarning

201Id at 145 (quoting UnitedStates v Fausto,448 US 439, 453 (1988)). 202Id at 132. 203 Pub L No 89-92, ? 5(a), 79 Stat 283 ("Warning:Cigarette Smoking May Be Hazard- ous to Your Health."). 204Id ? 2, 79 Stat 282, codifiedat 15 USC ? 1331. 205Id ? 5(a), 79 Stat 283. 206 See id ? 10, 79 Stat 284. 207 Pub L No 91-222, ? 5(a), 84 Stat 88, codifiedat 15 USC 1334(a). 208Id ?? 4 and 6, 84 Stat 88-89.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 269 label.209And, in 1986, it extendedthe substanceof the FCLAA to smokelesstobacco.210 Finally, in 1992, the Alcohol, Drug Abuse, and Mental Health AdministrationReorganization Act conditioned certainblock grantsto stateson theirprohibition of sales of tobacco productsto minors.211 Quite apartfrom its more dramaticconclusion that the FDCA's remedialprovisions required an outrighttobacco ban if the FDA assertedjurisdiction at all (a premisesharply contested by the dis- sent),the Court suggestedthat the FDA's more limitedexercise of regulatoryauthority threatened to disruptthe balance struckby these more specificstatutes.212 Although not freeof doubt,213this conclusionhas considerableforce. For example,recall that the FDA's regulationsbanned the sale of tobacco to minors,required photo identificationfor sales to personsunder twenty-seven,and largelyprohibited sales of tobacco throughself-service displays or vendingmachines.214 Congress's 1992 legislation,however, provided that stateswill develop reasonablerestrictions on sales to minors.In particular,that legislation conditioned block grantson a state'shaving "in effecta law providingthat it is unlawfulfor any manufacturer,retailer, or distributorof tobacco productsto sell or distributeany such productto anyindividual under the age of 18.'"215 More importantly,it also providedthat a state must agree to "enforce[such] law ... in a mannerthat can reasonably be expectedto reduce the extentto which tobacco productsare availableto individualsunder the age of 18.'"216 By specifyingde- tailedmeasures to denyminors access to tobacco,the FDA's regu- lationsappear to alterthe balance struckby the 1992 statute.In particular,they unsettle Congress's apparent determinationto

209 ComprehensiveSmoking Education Act, Pub L No 98-474,? 4(a), 98 Stat2200, 2201- 03. 210Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub L 99-252, 100 Stat 30, codifiedat 15 USC ? 4401 et seq. 211 Pub L No 102-321, ? 202, 106 Stat 394, codifiedat 42 USC ? 300x et seq. 212 See Brown& Williamson,529 US at 144 ("Congress has createda distinctregulatory schemeto addressthe problemof tobacco and health,and thatscheme, as presentlycon- structed,precludes any role forthe FDA."). 213See textaccompanying notes 237-38. 214 See textaccompanying note 48. 215 42 USC ? 300x-26(a)(1). 216Id ? 300x-26(b)(1).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 270 THE SUPREME COURT REVIEW [2000 leave the developmentof such programsto reasonablestate initia- tives.Similarly, the FDA's regulationsimposed significant new re- strictionson tobaccoadvertising and promotion.217Congress, however, had arguablyaddressed that very issue by prohibitingall tobacco advertisingon media regulatedby the FCC.218 In lightof theseconsiderations, even if the post-FDCA statutes do not reflectan intentto ratifythe FDA's originalview of its authority,the Court may have properlyfurthered nondelegation interestsby construingthe FDCA's generalprovisions in lightof the more specifictobacco statutes.This practicereflects a well- establishedinterpretive canon. As the Court has explained,"it is a commonplaceof statutoryconstruction that the specificgoverns the general."219Thus, "[h]oweverinclusive may be the language of a statute,... specificterms prevail over the generalin the same or anotherstatute which otherwise might be controlling."220The Court has applied this "specificitycanon," moreover,to ensure the coherenceof statutesenacted at differenttimes. For example, althoughfederal employees had traditionallyenjoyed a cause of action for adversepersonnel actions under the general authority of the Back Pay Act,the Court held thatthis authority was superseded by the "comprehensiveand integrated"remedial scheme that the Civil ServiceReform Act of 1978 specificallyestablished forsuch actions.221Similarly, the Court recentlyheld thatthe federal government'sright to enforcea taxlien turnedon the specific provisionsof the Federal Tax Lien Act of 1966, ratherthan the

217See note 49.

218 See 15 USC ?? 1335, 4402(f). 219 Moralesv Trans WorldAirlines, Inc., 504 US 374, 385 (1992); see also, for example, Gozlon-Peretzv UnitedStates, 498 US 395, 406 (1991) ("A specificprovision controls over one ofmore generalapplication."); Radzanower v ToucheRoss & Co.,426 US 148, 153 (1976) ("'Where thereis no clear intentionotherwise, a specificstatute will not be controlledor nullifiedby a generalone, regardlessof the priorityof enactment.'") (quotingMorton v Mancari,417 US 535, 550-51 (1974)). 220 CliffordF. MacEvoyCo. v UnitedStates, 322 US 102, 107 (1944). This premise,moreover,also findsexpression in the establishedmaxim of ejusdemgeneris, which provides that "when a generalterm follows a specificone, the generalterm should be understoodas a referenceto subjectsakin to the one withspecific enumeration." Norfolk & WesternR. Co. v TrainDispatchers, 499 US 117, 129 (1991); see also, forexample, Cleveland v UnitedStates, 329 US 14, 18 (1946) ("Under the ejusdemgeneris rule of constructionthe generalwords are confinedto the class and may not be used to enlargeit."); Goochv UnitedStates, 297 US 124, 128 (1936) (notingthat canon of ejusdemgeneris "limits general terms which follow specificones to matterssimilar to those specified"). 221 Faustov UnitedStates, 484 US 439, 453 (1988).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 271 more generallyapplicable provisions of an older statutegranting the United Statespriority in debt collection.222 Althoughits rationaleis rarelyexplained, the canon preferring the specificover the generalfurthers nondelegation interests, even though it displaces statutoryauthority that an agency or court mightotherwise enjoy. The centralaim of the nondelegationdoc- trineis to promotespecific rather than generallegislative policymaking-that is, to induceCongress to filtermore precise policies throughthe processof bicameralismand presentmentrather than leavingsuch policies to be elaboratedby agenciesor courtsoutside the legislativeprocess. Detailed legislationis morelikely to reflect the resultsof a specificchoice or compromise.223Permitting an agencyto relyon generalauthority to disruptthe balance struck by a morespecific statute may therefore undermine a preciseoutcome reached throughbicameralism and presentment.224Consider the

222 UnitedStates v Estateof Romani, 523 US 517, 532 (1998). 223 In contrastwith a generalstatute, a specificstatute is more likelyto reflectCongress's "detailedjudgment" about the appropriateway to "accommodate"competing policy con- cernsrelating to a particularsubject. Estate of Romani, 523 US at 532; see Easterbrook,50 U Chi L Rev at 547 (citedin note 132) ("A legislaturethat tries to approachthe line where costs begin to exceed benefitsis bound to leave a trailof detailedprovisions, which . .. wouldpreclude judges from attempting to fillgaps."). I have arguedelsewhere that bicameralism and presentmentrequire special respect for the specificresults of such a compromise. See Manning,101 Colum L Rev at 70-78 (citedin note 24). That processeffectively establishesa supermajorityrequirement by allocating lawmaking authority among distinct institu- tionsanswering to differentconstituencies. See JamesM. Buchananand Gordon Tullock, The Calculusof Consent235-26 (Michigan, 1962). So understood,it gives minoritiesan exaggeratedright to protectthemselves against majority factions through their ability to blocklegislation or, as a conditionof assent,to insistupon a compromiseoffering less than the full extentof what the majoritymight otherwise desire. See Manning, 101 Colum L Rev at 77-78 (cited in note 24). 224 See, for example,Gomez v UnitedStates, 490 US 858, 871-72 (1989): Through gradualcongressional enlargement of magistrates'jurisdiction, the Fed- eral MagistratesAct now expresslyauthorizes magistrates to presideat jurytrials of all civildisputes and criminalmisdemeanors, subject to specialassignment, consent of the parties,and judicialreview. The Act furtherdetails magistrates' func- tionsregarding pretrial and post-trialmatters, specifying two levels of reviewde- pendingon the scope and significanceof the magistrate'sdecision. The district court retainsthe power to assign to magistratesunspecified "additional duties," subjectonly to conditionsor reviewthat the courtmay choose to impose. By a literalreading this additionalduties clause would permitmagistrates to conduct felonytrials. But the carefullydefined grant of authorityto conducttrials of civil mattersand of minorcriminal cases shouldbe construedas an implicitwithholding of the authorityto presideat a felonytrial. See also, for example,International Paper Co. v Ouellette,479 US 481, 494 (1987) ("[W]e do not believe that Congressintended to underminethis carefullydrawn statute through a generalsaving clause.").

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 272 THE SUPREME COURT REVIEW [2000 followingexample: The OSH Act undoubtedlygrants the Secre- taryof Labor generalauthority allowing her to issue a regulation prescribingmaximum levels of benzenein the workplace.If, however, Congress were to enact the Benzene Control Act of 2001, providingthat "benzene exposurein the workplaceshall not exceed 10 parts per million,"a court mightfind that this specific statuteprecluded the Secretaryfrom promulgating a regulation settingthe appropriatelevel at five parts per million.Although such a regulationmay be viewed as supplementing,rather than contradicting,the specificstatutory requirements, it mightalso be seen as unsettlingthe precisebalance struckin a legislativeprocess thatpresumably involved bargaining between labor and manufac- turinginterests. If the lattercharacterization is correct,applying the specificitycanon promotesthe nondelegationdoctrine's aim of channelingspecific policy decisions through the filterof bicameralismand presentment. The Court'suse ofsimilar analysis in thecontext of federalcommon law makingsupplies a helpfulanalogy. Although the Court's post-Eriedefault position is that "'[t]here is no general federal common law,'"225 the Court nonethelesscontinues to recognize "federal common law powers" in certain enclaves involving uniquelyfederal interests226-specifically, in areas involving"the rightsand obligationsof the United States,interstate and international disputesimplicating the conflictingrights of States or our relationswith foreignnations, and admiraltycases."227 Even in these acknowledgedenclaves, however, the Court has shown its readinessto findthat federalcommon law authorityis displaced

225 O'Melveny& Myersv FDIC, 512 US 79, 83 (1994) (quotingErie R. Co. v Tompkins, 304 US 64, 78 (1938)); see also, for example,Northwest Airlines, Inc. v TransportWorkers Union,451 US 77, 95 (1981) ("[I]t remainstrue that federal courts, unlike their state coun- terparts,are courtsof limitedjurisdiction that have not been vestedwith open-ended law- makingpowers."); UnitedStates v StandardOil Co., 332 US 301, 313 (1947) ("[I]n the federalscheme our part in thatwork [of law creation],and the part of the other federal courts,outside the constitutionalarea is moremodest than that of the statecourts, particu- larlyin the freedomto createnew commonlaw liabilities. . . ."). 226Professor Brad Clarkhas recentlymarshaled substantial historical materials suggesting thatat least some of the "enclaves" can be re-rationalizedas rulesof decisiondesigned to implementvarious aspects of the constitutionalstructure. See BradfordR. Clark,Federal CommonLaw: A StructuralReinterpretation, 144 U Pa L Rev 1245 (1996). For presentpurposes, I assume arguendothat the Court has properlycharacterized the relevantexercise of authorityin these enclavesas federalcommon law makingpower. 227 TexasIndus. v RadcliffMaterials,451 US 630, 641 (1980) (footnotesomitted).

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 5] THE NONDELEGATIONDOCTRINE 273 when Congresshas enacteda statutedirectly on point.In Milwau- keev Illinois,228for example, the Court held thatthe FederalWater Pollution Control Amendmentsof 1972 (FWPCA)229 superseded an establishedfederal common law nuisanceaction for the abate- mentof interstatepollution.230 Emphasizing that federal common law is a "'necessaryexpedient"' even in the recognizedenclaves,231 the Court explainedthat "when Congress addressesa question previouslygoverned by a decisionrest[ing] on federalcommon law the need for such an unusual exerciseof lawmakingby federal courts disappears."232Of crucial significancehere, in displacing federalcommon law, the Court has recognizedthat the relevant question is "whetherthe legislativescheme 'spoke directlyto a question"' formerlyaddressed by federal common law, "not whetherCongress had affirmativelyproscribed [its] use."233 The MilwaukeeCourt's rationalerested squarely on the separation of powers;in our systemof government,the federalcourts are not thepreferred locus oflegislative policy-making authority.234 Hence, when the FWPCA adopted "a comprehensiveregulatory program,"it removedthe justificationfor judges to develop and apply"vague and indeterminatenuisance concepts and maximsof equityjurisprudence.'"235 More fundamentally,the Court has fre- 228451 US 304 (1981). 22933 USC ? 1251 et seq. 230 The Court had recognizedthat common law nuisanceaction in an earlierincarnation of the same case, decided beforethe FWPCA's enactment.See Illinoisv Milwaukee,406 US 91 (1972). 231 Milwaukeev Illinois,451 US at 314 (quotingCommittee for ConsiderationofJones Falls SewageSystem v Train, 539 F2d 1006, 1008 (4th Cir 1976) (en banc)). 232 Id. 233 Id at 315. It must be noted that the Court's approach is in some tensionwith the long-standingprinciple that "[s]tatutes which invade the commonlaw or the generalmari- timelaw are to be read witha presumptionfavoring the retentionof long-establishedand familiarprinciples, except when a statutorypurpose to the contraryis evident."Isbrandtsen Co. v Johnson,343 US 779, 783 (1952). The Court resolvesthat tensionby holdingthat the statutemust "'speak directly'" to the questionpreviously covered by the commonlaw beforeit may displace thatprior law. See UnitedStates v Texas,507 US 527, 534 (1993) (citationomitted); see also, forexample, County of Oneidav OneidaIndian Nation, 470 US 226, 237 (1985) (holdingthat the NonintercourseAct of 1793 does not displace federal common law relatingto unlawfulconveyance of Native Americanlands because it "does not speak directlyto the questionof remedies"for such conveyances). 234Milwaukee v Illinois,451 US at 315 ("Our commitmentto the separationof powers is too fundamentalto continueto relyon federalcommon law by judiciallydecreeing what accordswith common sense and the public weal when Congresshas addressedthe problem.") (internalquotation marks omitted) (quoting TVA v Hill, 437 US 153, 195 (1978)). 235Id at 317.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 274 THE SUPREME COURT REVIEW [2000 quentlyemphasized that when Congressprescribes a specificsolu- tionto a givenproblem, federal courts may not alteror supplement thatoutcome, lest theydisrupt the balance struckby Congress.236 The contextis somewhatdifferent, but similarprinciples ulti- matelyseem applicableto agencylawmaking as well. Initially,the differencein contexthighlights the factthat when the Court displaces federallawmaking power in favorof a specificstatute, it is disturbingjudicial, rather than legislatively conferred, authority. In contrast,when the Court uses the specificitycanon to narrowa broad delegation,it appearsto be alteringthe priorunderstanding of an expressstatutory scheme. For example,Brown & Williamson's use of the specificitycanon is itselfopen to the chargethat it dis- turbeda legislativechoice to framethe FDCA in broad terms; indeed,if the Court would otherwisehave read the FDCA to include tobacco,its use of the specificitycanon to narrowthe FDA's authoritymight be characterizedas a species of implied repeal. This characterizationof the specificitycanon, if correct,would triggersome of the same concernsas the canon of avoidance.The Court restrictsimplied repeals to cases involvingeither an irreconcilable conflictbetween two statutesor an affirmativelegislative intentin a later statuteto alter a preexistingstatutory scheme.237 Hence, ifthe FDA regulationswere thoughtto supplement,rather

236 See, forexample, Middlesex County Sewerage Auth. v NationalSea ClammersAss'n, 453 US 1, 14 (1981) ("In view of theseelaborate enforcement provisions it cannotbe assumed thatCongress intended to authorizeby implicationadditional judicial remediesfor private citizenssuing under [the Marine Protection,Research, and SanctuariesAct of 1972] and FWPCA."); TexasIndus., 451 US at 644 (refusingto recognizecommon law authorityto supplementthe remediesof the ShermanAct because "the remedialprovisions in the anti- trustlaws are detailed and specific");Mobil Oil Corp.v Higginbotham,436 US 618, 625 (1978) ("The Death on the High Seas Act ... announcesCongress' considered judgment on such issuesas the beneficiaries,the limitationsperiod, contributory negligence, survival, and The Act does not address issue of . . . but damages. .... every wrongful-deathlaw, whenit does speak directlyto a question,the courtsare not freeto 'supplement'Congress' answerso thoroughlythat the Act becomes meaningless.");Arizona v California,373 US 546, 565-66 (1963) ("It is truethat the Court has used the doctrineof equitableapportion- ment to decide rivercontroversies between States. But in those cases Congress had not made any statutoryapportionment."); cf. TransamericaMortgage Advisors, Inc. v Lewis,444 US 11, (1979) ("[I]t is an elementalcanon of statutoryconstruction that where a statute expresslyprovides a particularremedy or remedies,a courtmust be charyof readingothers into it."). 237 See, forexample, Morton v Mancari,417 US 535, 550 (1974) ("In the absenceof some affirmativeshowing of an intentionto repeal,the onlypermissible justification for a repeal by implicationis when the earlierand laterstatutes are irreconcilable.");Georgia v Pennsyl- vania R. Co., 324 US 439, 456-57 (1945) ("Only a clear repugnancybetween the old ... and the new [law] resultsin the formergiving way ...").

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thanconflict with, the post-FDCA tobaccolegislation,238 the Court could findan impliedrepeal onlyif it were able to concludethat thesubsequent legislation reflected an affirmativeintent to displace the FDA's backgroundauthority. As discussedin relationto the Court's ratificationargument, one cannot convincinglyimpute such an intentto Congress in this case. The well-establishedspecificity canon, however, is broaderthan the doctrineof impliedrepeals. Properly understood, that canon in factbears closer resemblance to thejudicial practice of curtailing federalcommon law authorityin the face of specificlegislation. Althoughauthorized by statute,agency lawmaking shares a crucial attributewith federalcommon law making:It departsfrom the constitutionallypreferred method of lawmaking-bicameralism and presentment.As in the case of federalcommon law, the Court has indicatedthat it acceptsdelegated agency lawmaking as a necessaryexpedient in the modernadministrative state. If the Court aggressivelyenforced the nondelegationdoctrine, Congress would not be able to anticipateand resolvewith specificity all the issues necessaryto regulatemodern industrial society. In addition,the Court lacksconfidence in its abilityto drawprincipled distinctions betweenpermissibly and excessivelybroad statutes.Neither concern applieswhen Congresshas otherwisespoken to an issue with particularity.In such cases, Congresshas shown its capacityand desireto set a precisepolicy itself, and any effortby an agencyto exerciseits general authorityon the same question threatensto disruptthe specificbalance struckin the legislativeprocess.239 And

238Such a conclusionmight be warrantedif one acceptsthe backgroundassumption that repeals by implicationare disfavored.See UnitedStates v UnitedContinental Tuna Corp., 425 US 164, 168 (1976). 239The Court has thus explainedthat the specificitycanon preventsa "narrow,precise, and specific"statute from being "submerged"by judicial or agencyelaboration of a distinct statutecovering "a more generalizedspectrum." Touche Ross & Co., 426 US at 153; see Theodore Sedgwick,A Treatiseon theRules Which Govern the Interpretation and Construction ofStatutory and ConstitutionalLaw 98 (Baker,Voorhis & Co., JohnNorton Pomeroy2d ed 1874) (notingthat the specificitycanon seeks to preservethe fruitsof a processin which "the mind of the legislatorhas been turnedto the details of a subject,and he has acted upon it"). This consideration,moreover, distinguishes the Court's use of the specificity canon fromits relianceon ratificationarguments to narrowthe FDCA. Althoughthe ratification argumentalso servesthe interestin specific,rather than general,policy-making, I have previouslyattempted to show that,in doing so, it restsupon erroneousassumptions about the discernmentof legislativeintent-assumptions that contradictthe premisesof bicameralismand presentment.The specificitycanon, in contrast,narrows a broad delega- tionto preservespecific policies that Congress has properlyenacted into law throughbicam- eralismand presentment.

This content downloaded from 71.65.244.36 on Tue, 21 Oct 2014 12:35:01 PM All use subject to JSTOR Terms and Conditions 276 THE SUPREME COURT REVIEW [2000 while the specificitycanon presentsits own line-drawingconcerns (discussedbelow), they are not of the same orderof magnitudeas thoseinvolved in attemptsto enforcethe traditionalnondelegation doctrine. The practicaldifficulties in applyingthe specificity canon to narrow broad delegationsare significant,but do not ultimatelynegate the utilityof thatcanon. The touchstonefor the canon's application,as Brown& Williamsonsuggests, is whetherCongress has directlyspoken to the precise question in issue. This factwill be most obviouswhen Congresshas addresseda particularsubject in a detailedand comprehensiveway. In othercases, it will be less clear. But the inquiryis no more complicatedthan the threshold questionposed when applyingChevron or, forthat matter, the basic questionposed in the federalcommon law cases. In Brown& Williamsonitself, if the Court correctlydetermined thatthe FDA would be obligedto ban tobacco if it assertedjurisdiction,then this result would plainly disruptthe balance that Congress specificallystruck when it enacted tobacco regulations but stopped shortof banningit. If, however,the Court misread the FDCA's remedial scheme in reachingthat conclusion,the questionof displacementwould be more complex.Congress arguably tinkeredat the marginsin its tobacco statutes:imposing certain labelingrequirements, banning advertising in certainmedia, and givingstates inducements to regulatetobacco sales to minors. In contrastwith the FWPCA's approachto waterpollution, the post-FDCA legislationhas not adopteda comprehensiveand inte- gratedprogram for regulating tobacco.24 Still, despite Congress's limitedsteps into areas such as labeling,advertising, and sales to minors,it has arguablyspoken to thoseparticular issues by defining a preciselevel and methodof regulatingtobacco in such contexts.Indeed, one of the aims of bicameralismand presentmentis to filterout laws thatcannot secure a sufficientconsensus to gain the assentof all threeconstitutionally specified participants in the legislativeprocess. If Congress has addresseda subject,but has done so in a limitedway, this fact itself may suggest that Congress has gone as faras it could, as faras the enactingcoalition wished to, on the subjectin question.If the Court permittedthe FDA to

240See Sunstein,47 Duke L J at 1050 (cited in note 28).

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go fartherunder the FDCA's generalauthority, such actionmight disturbthe moreprecise policies adopted by Congressthrough bicameralismand presentment.241

IV. CONCLUSION

The nondelegationdoctrine serves important constitutional interests:It requiresCongress to take responsibilityfor legislative policy and ensuresthat such policy passes throughthe filterof bicameralismand presentment.The Court,however, has been re- luctantto enforcethis doctrine directly, largely out of concernthat aggressiveenforcement of that doctrinewill hamper Congress's abilityto exerciseits constitutionalpowers and will strainthe Court's capacityto makeprincipled judgments about excessive delegations.Although the Court has choseninstead to promotenon- delegationinterests through the canon of avoidance,this strategy producessignificant pathologies of its own. As both Benzeneand Brown& Williamsonillustrate, when the Court departsfrom its usual methodsof interpretationto avoid a seriousnondelegation question,it runs the risk of departingfrom congressional commandsin the process.If the aim of the nondelegationdoctrine is to forceCongress to take responsibilityfor legislative policy, the Court's avoidancestrategy defeats, at least as muchas it promotes, thatconstitutional objective.

241Of course, the specificitycanon supplies only a defaultposition. It does not apply when Congresshas otherwiseindicated its desirenot to displacebackground agency authority throughspecific legislation on the same subject.In the contextof tobacco, theremay be an idiosyncraticreason to thinkthat the Court's displacementof the FDA's tobacco authoritycontradicted legislative directions. In its post-FDCA legislation,Congress ex- presslyforeclosed any "additional" labeling requirements.See, for example, 15 USC ? 1334(a). One mightinfer from this legislation that when Congresswished to bar further agencyaction, it did so expressly.Because no similarstatutory provision addresses tobacco advertisingor sales to minors,the labelingprovisions may themselvescarry a crucialnega- tive implication.Whatever the correctanswer in the particularcircumstances of Brown& Williamson,however, the specificity canon, properly applied, may suggest a basis forlimiting delegationsin the future.

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