Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2004 Rethinking Article I, Section I: From Nondelegation to Exclusive Delegation Thomas W. Merrill Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Legislation Commons Recommended Citation Thomas W. Merrill, Rethinking Article I, Section I: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097 (2004). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/138 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 104 DECEMBER 2004 NO. 8 ARTICLES RETHINKING ARTICLE I, SECTION 1: FROM NONDELEGATION TO EXCLUSIVE DELEGATION Thomas W Merrill* The first substantive clause of the Constitution-providingthat "[aill legislative Powers herein granted shall be vested in a Congress"--is associ- ated with two postulates about the allocationof legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legis- lative power. The second is the exclusive delegation doctrine, which says that only Congress may delegate legislative power. This Article explores the tex- tual, historical, and judicial supportfor these two readings of Article I, Sec- tion 1, as well as the practical consequences of startingfrom one postulate as opposed to the other. The Article concludes that exclusive delegation is supe- rior to the nondelegation doctrine, either in its present unenforced version, or if it were enforced more strictly. The nondelegation doctrine demands that Congress constrain the discretion of agencies by resolving, at some level, spe- cific policy disputes. The exclusive delegation doctrine requires that Congress consider who is to resolve policy disputes and over what domain of controver- sies. Given the realities of modern government, Congress is better suited to answer questions about which institution should make policy than it is to make policy itself The exclusive delegation doctrine would reorient under- standing of the allocation of legislative power in a way that provides a better fit with institutionalrealities, and yet would also preserve an important mea- sure of exclusive power to Congress as the first branch of our national government. INTRODUCTION .................................................... 2098 I. Two POSTULATES ABOUT LEGISLATIVE POWER .............. 2102 A. The First Postulate-Nondelegation .................. 2103 B. The Second Postulate-Exclusive Delegation ......... 2109 II. TEXTUAL POSSIBILITIES ..................................... 2114 A. Legislative Power .................................... 2115 B. Sharing Principles ................................... 2116 C . H erein .............................................. 2118 * Charles Keller Beekman Professor of Law, Columbia University. Many thanks to Larry Alexander, Gary Lawson, Vic Goldberg, John Manning, Gillian Metzger, Henry Monaghan, Sai Prakash, Eric Posner, Peter Strauss, and Adrian Vermeule for helpful comments and criticisms of earlier drafts, and to Aimee MacKay and Kathryn Tongue Watts for allowing me to draw on their independent research projects. Useful feedback was also provided by faculty workshops at Columbia and Virginia law schools. 2097 2098 COLUMBIA LAW REVIEW [Vol. 104:2097 D. Mixing and Matching ................................ 2119 III. CONSTITUTIONAL STRUCTURE, ORIGINAL UNDERSTANDING, SETTLED M EANINGS ....................................... 2120 A. Is Article I, Section 1 Irrelevant? ..................... 2121 B. Legislative Power .................................... 2122 C. Sharing Principles ................................... 2127 D . H erein .............................................. 2136 E. Final Verdict on Traditional Tools of Interpretation ........................................ 2138 IV. THE CONSEQUENCES OF INTERPRETATIONAL CHOICE ........ 2139 A. Antidelegation Policies ............................... 2141 1. Democratic Accountability ........................ 2141 2. Policy D rift ...................................... 2142 3. The Bicameral and Presentment Filter ............ 2145 4. Checks and Balances ............................. 2147 5. Facilitating Judicial Review ....................... 2149 6. Antidelegation Policies: Summing Up ............ 2151 B. Prodelegation Policies ................................ 2151 1. Expertise ........................................ 2151 2. Scale ............................................ 2153 3. D eliberation ..................................... 2154 4. Judicial Administrability .......................... 2156 5. Prodelegation Policies: Summing Up ............. 2158 C. Final Verdict on Consequences ....................... 2158 V. CONSTITUTIONAL ARCHITECTURE ........................... 2159 VI. IMPLICATIONS .............................................. 2165 A. Repudiating the Nondelegation Doctrine ............. 2165 B. The Limits of Agency Authority ...................... 2169 C. H ow Chevron Fits In .................................. 2171 D . Subdelegation ....................................... 2175 E. Inherent Presidential Powers ......................... 2177 CONCLUSION ...................................................... 2181 INTRODUCTION The first substantive clause of the United States Constitution, appear- ing immediately after the Preamble, provides, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." ' This "Vesting Clause" (as it is sometimes called) of Article I, Section 1 is associated with two postulates about the allocation of legislative power. The first says, "Congress may not constitutionally delegate its legislative power to an- 1. U.S. Const. art. I, § 1. Subsequent references in quotation marks to "all" "legislative power" and "legislative powers" all refer to the words "All legislative Powers" in Article I, Section 1. Brackets denoting a missing "s" or a change in capitalization are omitted to avoid undue clutter. 2004] RETHINKING ARTICLE I, SECTION 1 2099 other branch of Government. '2 The second says, "It is axiomatic that an administrative agency's power to promulgate legislative regulations is lim- ited to the authority delegated by Congress. '3 Both postulates ascribe exclusive authority to Congress with respect to the exercise of legislative power. Otherwise, the two postulates are in significant tension with one another. The first says only Congress may exercise legislative power. The second says only Congress may delegate legislative power. In short, Arti- cle I, Section 1 has been read as imposing both a nondelegation doctrine and what may be called an "exclusive delegation doctrine." The tension between these postulates has long been recognized-up to a point. What has been recognized is the difficulty of squaring the first postulate (that Congress may not delegate legislative power) with the fact that Congress has massively delegated legislative rulemaking authority to administrative agencies. The Supreme Court has tried to resolve this par- ticular tension by defining "legislative power" for purposes of nondelega- tion challenges to mean the exercise of unconstrained discretion in making rules. 4 Thus, Congress would be guilty of delegating the legislative power only if it gave something approaching blank-check legislative rulemaking authority to an agency. As long as an agency's discretion is somewhat confined-the favored formula is to ask whether Congress has laid down an "intelligible principle" for the agency to follow5-then there has been no delegation of "legislative power." This doctrinal solution has been coupled with a judicial attitude of great deference in determining whether any particular statute confers too much discretion. The net re- sult is that the nondelegation doctrine, while still formally considered part of our structural Constitution, is effectively unenforceable. What has not been recognized is that the second postulate (that agencies may not engage in legislative rulemaking unless Congress has clearly authorized them to do so) rests on different assumptions from the first. The most obvious difference is that this second postulate presumes that Congress is permitted to delegate something that can be called legis- lative power, whereas the first postulate posits that it may not. But there is an even deeper dissonance in that the second postulate implicitly incor- porates a different definition of "legislative power." When courts say that agencies have no power to make legislative rules unless such power has been delegated to them by Congress, they are not referring to how much discretion an agency exercises. What they mean by "legislative power" in this context is the power to make rules that are legally binding on the pub- 2. Touby v. United States, 500 U.S. 160, 165 (1991). 3. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). 4. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472-76 (2001); Loving v. United States, 517 U.S. 748, 771-72 (1996); Touby, 500 U.S. at 165; Mistretta v. United States, 488 U.S. 361, 372-73 (1989). 5. The formula dates from J.W. Hampton, Jr.,