Delegation as a Canon of Construction

Delegation as a Canon of Construction

The nondelegation doctrine usually works in modern cases without invalidating anything. The Supreme Court has struck down legislation on delegation grounds on only two occasions, and the more common approach is to read a statute so that the delegation becomes acceptable.¹ In Mistretta v. United States the Court observed that, in recent years, it has applied the doctrine principally to the interpretation of statutory texts, and more particularly to giving narrow constructions to statutory delegations that might otherwise be thought unconstitutional.² A canon of construction is a background presumption that courts apply when a text can fairly be read more than one way. This canon tells a court to prefer the reading that confines the agency over the reading that leaves its discretion open. It is constitutional avoidance applied to delegation: if the scope of a statutory standard may be read broadly or narrowly, a court is likely to adopt the narrower construction when the broader one raises nondelegation concerns.³

Courts prefer this route for practical reasons. Narrowing avoids a constitutional clash with Congress.⁴ It is also less disruptive than invalidation. An interpretation that specifies limits on regulation, or that requires procedural fairness, is more easily corrected if the court has misread Congress, because Congress can amend the statute to say what it meant.⁵ The usual result is that the agency's particular action is held ultra vires, meaning beyond the power the statute grants, so the agency loses and the statute stays in force.⁶

The technique has a price, and the price marks its boundaries. A court that supplies a limit Congress never wrote replaces one unelected decisionmaker with another. That does little to push Congress to take responsibility for major policy choices, and a judicial gloss can make a regulatory scheme less workable.⁷ Courts therefore use the technique with restraint. Three topics follow: how courts narrow open-ended standards, why the presumption strengthens when personal liberty is at stake, and where the canon stops.

H9 shows the canon at its plainest. The Independent Offices Appropriation Act let government agencies become more self-sustaining by charging fees for the services they provide to industries, and it told them to set each fee by looking to the government's direct and indirect cost, the value to the recipient, the public policy or other interests served, and other pertinent facts.H10 The Federal Communications Commission used that authority to impose charges of about a million dollars a year on cable television firms, and the firms sued.H11 The Court sided with them because some of the Act's open-ended terms left the agency free to pick among competing values in the manner of a legislative body, yet it did not declare the Act unconstitutional.H12 It narrowed the Act instead, eliminating the indeterminate public-policy factor and leaving the more determinate value-to-the-recipient factor intact.H13

The choice of which factor to cut follows the logic of the delegation problem. Value to the recipient can be measured, so a reviewing court can compare a fee with the benefit the payer received and say whether the agency stayed within the statute. A direction to weigh public policy and other interests served lets the agency decide which interests count and how much, and that decision is the policy choice Article I assigns to Congress. Removing the second factor takes out the part of the statute that handed over a choice and keeps the part that supplies a yardstick.

The same technique appeared in Industrial Union Department v. American Petroleum Institute, known as the Benzene case. Section 6(b)(5) of the Occupational Safety and Health Act directed the Secretary of Labor to issue rules protecting workers from toxic substances “to the extent feasible,” and the Secretary promulgated a regulation calling for expensive measures to minimize exposure to benzene, a cancer-causing chemical.⁸ A plurality of four, in an opinion by Justice Stevens, read other parts of the Act to require a finding of significant risk of harm to workers, a finding the agency had not made, and the rule fell while the statute survived.⁹ Stevens said he adopted that reading partly because, without the limit, the Act might violate the nondelegation doctrine.¹⁰ Most commentators regard the construction as rather forced, which shows how far a court may go in the name of avoidance.¹¹

Justice Rehnquist supplied the fifth vote against the rule on a different ground. He would have held the statute itself an unconstitutional delegation, because the phrase “to the extent feasible” was a “legislative mirage” by which Congress avoided deciding when employers may be allowed to run some risk of injury to workers given the high cost of protection.¹² Resolving fundamental, politically divisive questions of that kind, he insisted, is the essence of legislative authority and should not unnecessarily be left to a politically unresponsive administrator.¹³ The two opinions looked at the same open text and chose different remedies. The plurality's cost the least, because only the rule fell, while Rehnquist's would have removed the grant of power itself.

Lower courts use the canon in a related way, to reject an agency's claim that a vague charter gives it more power than Congress could have meant. In Central Forwarding, Inc. v. ICC, the Interstate Commerce Commission cited a broad statement of national transportation policy as authority to make rules, and the court of appeals refused to read it that way. The court reasoned that the Commission's reading would make superfluous much of the Act's detailed guidelines and delegations, and that treating a policy statement that says little more than an instruction to go out and do good as a grant of rulemaking power might amount to an unconstitutional delegation.¹⁴ The delegation concern did not strike down the statute. It became a reason to hold that the agency lacked the power it claimed.

Fundamental Liberties

The presumption in favor of narrow readings gets stronger when the power in question would cut into a basic personal liberty. In Hampton v. Mow Sun Wong the Civil Service Commission had issued a rule denying federal jobs to immigrants, and the Court found that the rule restricted an important personal liberty and overturned it.¹⁶ The Court refused to presume that the Commission, whose statutory goal was promoting the efficiency of the civil service, had been delegated the power to impose that exclusion.¹⁷ Kent v. Dulles applied the same approach to passports. The power given to the State Department could not be read to include denying a passport because of the applicant's political affiliation, since that action had to be authorized by Congress and had not been clearly authorized, and delegated powers that curtail activities as natural to a citizen's well-being as travel are construed narrowly.¹⁸

The heightened presumption comes from what a general grant tells a court. A direction to promote efficiency shows that Congress wanted a well-run service, but it does not show that Congress weighed the cost of closing public employment to a whole class of people. That weighing is the kind of policy choice Article I sends through two Houses and the President. Reading the grant narrowly therefore returns the question to Congress. If the legislature wants the agency to have the authority, it can say so in a statute, and the legislators who vote for it answer to the voters for the choice.

United States v. Robel shows the concern in a harsher setting. Congress had authorized the Secretary of Defense to deny employment in any defense facility to members of the Communist Party, and the Court overturned the provision.¹⁹ Justice Brennan's concurrence stressed that formulating policy is a legislature's primary responsibility, and that the statute left the term defense facility undefined, so that it reached virtually every place of employment in the country.²⁰ The Secretary's judgment, colored by an overriding duty to protect the national defense, was not an acceptable substitute for the judgment of Congress.²¹ Robel differs from Kent and Mow Sun Wong because Congress there had expressly authorized a denial of employment, so the question was whether the delegation was valid. In the other two cases the question was whether Congress had delegated the power at all.

On an exam, the liberty point works as a clear-statement requirement layered on top of the ordinary canon. Identify the interest affected, then ask whether the statute speaks to the restriction clearly enough to show that Congress itself made the choice.

Limits of the Canon

The canon works only when the text will bear the narrower reading. Whitman v. American Trucking Associations, Inc. marks that boundary. The Court held that the avoidance canon had no application to the Clean Air Act provision before it, because the text of § 109(b) unambiguously bars cost considerations from the process of setting air quality standards.²³ The Court stated the limit in general terms: “No matter how severe the constitutional doubt, courts may choose only between reasonably available interpretations of a text.”²⁴ A court that adopts a reading the words cannot support has stopped interpreting and begun writing the standard itself. That makes the court the lawmaker and defeats the purpose of avoiding a delegation problem.²⁵ The Benzene plurality's reading, which went about as far as a text allows, shows how close to that line the canon can run.

A second limit separates two things that can both be called narrowing. A court narrows when it interprets the statute Congress enacted. An agency does something different when it announces that it will use only part of its power. In Whitman the court of appeals found that the agency's interpretation supplied no intelligible principle, yet it sent the matter back so that the agency could adopt a limiting construction. The Supreme Court rejected that move, explaining that it has never suggested an agency can cure an unlawful delegation by adopting a limiting construction in its discretion.²⁶ The idea that an agency can cure a standardless delegation by declining to exercise some of its power was, the Court said, internally contradictory, because the very choice of which portion of the power to exercise would itself prescribe the standard Congress omitted, and that prescription is the forbidden legislative act.²⁷ Whether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing on the answer.²⁸

Whitman itself shows the permitted version. The Court agreed with the Solicitor General that the text of the statute at a minimum requires the Environmental Protection Agency to set standards at a level requisite to protect public health, meaning sufficient but not more than necessary.²⁹ It also endorsed the concession that the standards must reflect the latest scientific knowledge, a construction that went beyond the statutory language and put a significant constraint on the agency's rulemaking power.³⁰ The difference lies in who supplies the limit. A court's reading comes from the enacted text, it binds the agency in every later action, and Congress can amend the statute if the court misunderstood it. An agency's self-imposed limit comes from the body whose discretion is in question, so the agency that adopted it can drop it, and in choosing it the agency has set the policy Congress left open.

Steps two and four carry most of the weight. They keep a court from rewriting a statute under the label of avoidance, and they keep an agency from rescuing a statute by writing its own limits. A related device that reaches broad grants of agency power without invoking the constitutional doctrine at all appears later in this reading, under the major questions doctrine.