The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” U.S. Const., Art. I, § 1, and we long have insisted that “the integrity and maintenance of the system of government ordained by the Constitution” mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 504, 36 L.Ed. 294 (1892). We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: “In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). So long as Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Id., at 409, 48 S.Ct., at 352.
Mistretta v. U.S., 488 U.S. 361 (1989).
The doctrine's purpose was well stated by David Schoenbrod of the New York Law School in a 1999 Federalist Society debate:
Professor Schoenbrod described the evils of broad delegations, arguing that delegation by Congress of its legislative authority to the executive branch vastly increases the amount of Federal regulation. He explained that Congress is able, through broad delegations, to take credit for bestowing rights but simultaneously is able to avoid the blame for imposing duties. Consequently, Congress has an incentive to launch more sweeping federal regulatory programs than if it were held strictly responsible for the laws enacted.
The non-delegation doctrine and, especially Schoenbrod's observation that broad delegations allow Congress "to take credit for bestowing rights but simultaneously ... avoid the blame for imposing duties," was called to mind by Wednesday's WSJ editorial:
In a recent note to clients, the law firm of Davis Polk & Wardwell needed more than 150 pages merely to summarize the bureaucratic ecosystem created by Dodd-Frank. As the nearby table shows, the lawyers estimate that the law will require no fewer than 243 new formal rule-makings by 11 different federal agencies.
The SEC alone, whose regulatory failures did so much to contribute to the panic, will write 95 new rules. The new Bureau of Consumer Financial Protection will write 24, and the new Financial Stability Oversight Council will issue 56. These won't be one-page orders. The new rules will run into the hundreds if not thousands of pages in the Federal Register, laying out in detail what your neighborhood banker, hedge fund manager or derivatives trader can and cannot do. ...
Because Congress abdicated its responsibility to set clear rules of the road, the lobbying will only grow more intense after the President signs Dodd-Frank. According to the attorneys, "The legislation is complicated and contains substantial ambiguities, many of which will not be resolved until regulations are adopted, and even then, many questions are likely to persist that will require consultation with the staffs of the various agencies involved."
Indeed, the sweeping breadth of Congress' delegation -- or, if you prefer, abdication, may be even greater than the Journal initially opines. An editorial today reports that:
Now comes Tom Quaadman of the U.S. Chamber of Commerce, who doesn't quarrel with the Davis Polk estimate but has added rule-makings authorized by this legislation to those that are mandated and says that American businesses should expect a whopping 533 new sets of rules. To put this number in perspective, Sarbanes-Oxley, Washington's last exercise in financial regulatory overreach, demanded only 16 new regulations. Thus he reasons that Dodd-Frank "is over 30 times the size of SOX."
Mr. Quaadman may be selling Dodd-Frank short. Neither his analysis nor the one from Davis Polk counts duplicative rule-makings, when various agencies create different rules governing the same activity, as they are empowered to do in various Dodd-Frank provisions.
Unfortunately, the odds that the courts will use the non-delegatiopn doctrine to trim back on the scope of Dodd-Frank are terrible. As Justice Breyer related in his dissent in Clinton v. City of New York, 524 U.S. 417 (1998):
Indeed, the Court has only twice in its history found that a congressional delegation of power violated the “nondelegation”*486 doctrine. One such case, Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), was in a sense a special case, for it was discovered in the midst of the case that the particular exercise of the power at issue, the promulgation of a Petroleum Code under the National Industrial Recovery Act, did not contain any legally operative sentence. Id., at 412-413, 55 S.Ct., at 244-245. The other case, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), involved a delegation through the National Industrial Recovery Act, 48 Stat. 195, that contained not simply a broad standard (“fair competition”), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry, id., at 521-525, 55 S.Ct., at 839-841. As Justice Cardozo put it, the legislation exemplified “delegation running riot,” which created a “roving commission to inquire into evils and upon discovery correct them.” Id., at 553, 551, 55 S.Ct., at 853, 852 (concurring opinion).
And so we see a dual abdication. Congress ducks tough decisions by dumping them into the lap of bureaucrats, while the courts duck tough decisions by treating such delegations as de facto non-justiciable.
Lame. very lame.
