CU Files Amicus Brief in FCC v. Consumers Research (Delegation of Legislative Power)

These amici urge the Court to address and rule separately on Issue 1 (“Whether Congress violated the nondelegation doctrine…”) following the approach of the concurring opinion below, rather than merge Issue 1 with Issue 2 (“Whether the Commission violated the nondelegation doctrine…) as done in the circuit court’s main opinion. The violation of the nondelegation doctrine by re-delegation raised by Issue 2, is highly problematic, but far less prevalent than the problem addressed in Issue 1. Only by addressing Issue 1 separately can this Court remedy the continuing problem of Congressional delegation and give true effect to Article I, section 1.

The Framers never envisioned the delegation of legislative power to the executive branch, and that was also the rule in state constitutions. As recently as 1892, this Court asserted that the nondelegation principle was “vital to the integrity and maintenance of the system of government ordained by the Constitution.” However, the vast expansion of government during the Progressive Era and World War I directly led in 1928 to the rise of the administrative state with little to constrain it but the “intelligible principle” test, which after a century, has proven to be unintelligible. Not a single statute has been invalidated under this doctrine since 1935. As Professor Philip Hamburger writes, this Court “simultaneously worries about delegation and permits it,” as it provides a “fiction” on which “the Court can pretend Congress is not delegating legislative power.”

The dissent below relies on a 1989 decision of this Court which provides the standard rationalization used to turn a blind eye to the delegation of legislative powers — “the necessities of modern legislation dealing with complex economic and social problems.” Necessities are always a dangerous justification for abandonment of constitutional principles. Moreover, this “necessity” is downstream of this Court’s having facilitated the enormous growth of government regulation, spending, and taxing by removing the constitutional limitations on those federal powers. Last fiscal year, this nation ran a truly unsustainable deficit of $1.83 trillion, and thus the many ways in which this Court has paved the way for the “necessity” of delegating legislative power to implement federal programs also needs re-examination.

Lastly, there is a close tie between the principles undergirding this case and this Court’s decision in Humphrey’s Executor. There, the Court based its decision to limit the ability of the President to remove certain executive branch officials because they were not only exercising executive power, but also “quasilegislative” and “quasi-judicial” power. The loss of the President’s power to remove certain officials has contributed to the unrestrained and unaccountable administrative state. In truth, there is nothing “quasi” about the type of legislative and judicial power delegated to many agencies. If the nondelegation doctrine is revived, it soon may require a revisitation of Humphrey’s Executor as well.