Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated

Abstract

The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John Locke listed four constraints on the legislative power, the last that the power, being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.Most contemporary readers have assumed two things about Locke's statement: First, that the legislative power was the power to make rules for society. Second, that this delegated power to make laws could not be transferred to third parties because the people had never authorized their agents to further delegate. These two principles underlay the conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of legislative power.In their recent article, Interring the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine. In their view, the "legislative power" generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties "legislators" by giving them the power to vote in the legislature. So when Article I of the Constitution speaks of "legislative Powers," it refers to those powers individually held by federal legislators, including most prominently the right to vote on bills. Furthermore, under their "naive" nondelegation doctrine, these are the legislative powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor the federal Constitution go further and prohibit broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate legislative power. Accordingly, should Congress delegate to some third party its entire power to "regulate Commerce," Congress has not delegated legislative power at all in either a Lockean or a constitutional sense.Professors Posner and Vermeule deserve praise for reexamining fundamental assumptions about the nature and meaning of legislative power and of the nondelegation doctrine. When scholars don't periodically reconsider conventional wisdom, scholarship stagnates and shibboleths are unreflectively accepted as constitutional gospel.Having said this, we doubt that they truly have laid to rest either the traditional understanding of legislative power or the conventional nondelegation doctrine. Our disagreements are both normative and descriptive. We cannot discern (and they do not advance) a plausible rationale for simultaneously permitting Congress to delegate large amounts of lawmaking or rulemaking discretion to third parties while strictly forbidding delegations of the right to vote in Congress. Moreover, as an original matter, we believe that Locke and the Constitution used the phrase "the legislative power" to refer to the power to make rules for society and not the ability to exercise the de jure powers of legislators. Hence, if one concludes that Congress cannot delegate legislative powers (either because such grants are not authorized or, alternatively, are implicitly forbidden), one must be worried that at some point, the delegation of large amounts of discretion might constitute a delegation of legislative power.Furthermore, whatever meaning one should ascribe to the phrase "legislative Powers" found in the Article I Vesting Clause, we think that Posner and Vermeule too quickly reject the conventional reading of Locke's nondelegation principle. Their revisionist reading simply cannot make sense of Locke's repeated claims that only those whom the people have appointed as legislators can make rules for the people. Locke denied that the legislative power entailed the power to make third parties into legislators by delegating to them the right to make laws. He was not merely claiming that those with the legislative power could not cede votes in the legislature.Finally, we conclude that if Posner and Vermeule applied the relentless criticism that they visit upon the conventional nondelegation doctrine to the naive prohibition on the delegation of legislative voting rights, the naive prohibition would seem equally dead. The "heavy burden" that they insist applies to the conventional nondelegation doctrine makes all implicit constraints extremely dubious. Perhaps we should prepare for two interments rather than one.Although we have sympathy for the conventional nondelegation doctrine, space considerations prevent us from mounting an adequate defense of it here. Hence, all we claim is that if one concludes that the delegation of legislative power is impermissible (for whatever reason), one must have in mind a prohibition akin to the conventional nondelegation doctrine. If, as Posner and Vermeule claim and as many others believe, the Constitution prohibits the delegation of legislative power, the nondelegation doctrine is alive and kicking.