That sick chicken won't hunt: the limits of a judicially enforced non-delegation doctrine.

INTRODUCTION

Since the resolution of the New Deal constitutional crisis, the non-delegation doctrine has lived a "fugitive existence at the edge of constitutional jurisprudence."(1) Advocates of the doctrine argue that legislative delegation of rule-making power to the executive branch is unconstitutional, and that the federal courts should strike down legislation that delegates. Over the last few decades, many constitutional scholars and critics of the administrative state have expressed at least passing approval for the doctrine, with an occasional thorough exploration and defense--most notably in David Schoenbrod's 1993 book, Power Without Responsibility.(2) Numerous scholars across the political and ideological spectrum seem to accept the critique of the administrative process offered by proponents of the non-delegation doctrine.(3) Nevertheless, the doctrine's existence remains "fugitive," both in the law and in the academy. The Supreme Court has shown little sustained inclination toward reviving the doctrine, and many of the scholars who express some support for it don't seem to take it very seriously.

This paper takes the non-delegation doctrine seriously, but argues that even strict judicial enforcement of a ban on legislative delegation will not necessarily result in dramatic improvements in policies or political accountability in the American separation of powers system.(4) Earlier critics of the doctrine make important and compelling points, but their focus on constitutional and practical problems leads many of them to buy into the same misleading assumptions about the connections between delegation and accountability that defenders of the doctrine embrace. This paper instead challenges the non-delegation doctrine by challenging the understanding of political accountability relied upon by proponents of the doctrine. I argue that proponents of the doctrine incorrectly give primacy to legislative decision-making when they think about accountability in our constitutional system, and thus incorrectly conclude that accountability can be established or improved by judicial enforcement of a doctrine that forces legislators to make more decisions. The structure of the Constitution means that even a strictly enforced nondelegation doctrine will not by itself create a system in which accountable legislators have supreme and exclusive law-making authority.

To show that judicial enforcement of a non-delegation doctrine cannot solve the problems of accountability identified by the doctrine's proponents, I will provisionally accept some of the key claims made by defenders of the doctrine. I will assume for the sake of argument that the courts have the constitutional authority to enforce a non-delegation doctrine and the practical capability to prevent legislators from delegating lawmaking power to the executive branch. Accepting these assumptions allows me to focus on a question that has not yet received enough attention: Would a judicially created "world without delegation" be a world of greater democratic accountability than today's world?

I find that the surface attractiveness of the non-delegation doctrine masks some rather large gaps in its proponents' account of the way that representation and democratic accountability work in the American separation of powers system. Proponents of the non-delegation doctrine urge the courts to bring an end to delegation as a means of restoring or improving democratic accountability. And proponents of the doctrine usually do a very good job demonstrating that there are problems with accountability in the current world of rampant delegation. But they have failed to demonstrate a link between accountability and delegation that is strong enough to prove that ending delegation will solve the problems of accountability that they identify. In response, I argue that proponents of the non-delegation doctrine have underestimated the complexity of problems of accountability and thus overestimated the importance of delegation to problems of accountability. Critics of delegation and proponents of the non-delegation doctrine have mistaken one symptom of some underlying problems with accountability in our constitutional system for the cause of those problems.

The observation that delegation is a symptom rather than a cause emerges after a more careful consideration of how legislators and voters could respond to strict judicial enforcement of a non-delegation doctrine. Proponents of the doctrine often admit to considerable uncertainty about the precise results of strict judicial enforcement of the non-delegation doctrine.(5) But they are apparently so unimpressed with the advantages of delegation, and so appalled by the harms they associate with delegation, that they are willing to take a plunge into the unknown. I agree that the precise consequences of a judicial ban on delegation are difficult to predict, but I am less convinced that judicial intervention alone will dram...

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