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 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The University of Chicago Press is collaborating with JSTOR to digitize, preserve and extend access to The Supreme Court Review. http://www.jstor.org 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 inter- ests, includingthe promotionof legislativeresponsibility for so- ciety'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 non- delegationdoctrine, while avoiding many of the practicalconcerns raised by directenforcement. Last Term's decision in FDA v Brown& WilliamsonTobacco Corp.8implemented this "narrow constructionstrategy" in re- jecting 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 respon- sibilityfor policy choices and to safeguardthe processof bicamer- alism 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 deter- minedthat 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 asser- tionof 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 stat- ute.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 postenactmentlegis- lative 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