The Court Rides to the Rescue.
Justice Gorsuch seems unconvinced that Congress can successfully enable agencies to administer congressional programs effectively and with sufficient discretion without turning the enterprise over to the President acting through his constitutional power to remove agency officials. As I wrote before, I do not see the President’s newly-confirmed power to remove agency officials with the same alarm as the Slaughter dissenters do and which Gorsuch at times projects. Perhaps it is no surprise that, as a member in good standing of the judiciary, Gorsuch sees the solution coming from the courts. He declares this to be justifiable responsibility, seeing that the Supreme Court has been a significant actor in creating the problem of a powerful bureaucracy that is largely insulated from political control—at least until Trump v. Slaughter—and generally invisible to the public until it acts against them personally. If, due to structural constitutional impediments or a lack of political will, Congress cannot solve the potential problem of the accumulation of legislative, executive, and judicial power in the President’s hands now that control over the administrative bureaucracy has returned to him, the Court must step into the breach.
Proposal: Reinvigorate the “Non-Delegation” Doctrine.
Gorsuch points to doctrines the Court could use to rebuild constitutional boundaries and prod Congress into action. For one, there is the “non-delegation doctrine.” Two centuries ago, the Supreme Court under Chief Justice John Marshall declared in Wayman v. Southard that delegated power cannot be redelegated, but that less important matters, mere details of implementation, could be delegated to others. As provided in the Constitution, the people (or, at the time, the state legislatures regarding the Senate) delegated to Congress the power to legislate for certain specified objectives. As to those specified objectives, the Constitution vests the power to legislate only in the Congress, subject to the exception of the President’s veto power. Hence, Congress cannot redelegate the powers which the people have entrusted to that body. But Congress can assign minor aspects of those powers to be exercised by others, much like an agent acting for a principal can assign minor aspects of that agency to others. An example in a basic business setting might be a real estate agent acting for a seller who assigns to another person the task of publicizing an open house. That task is a mere ministerial duty, a detail of implementation, which does not demand the exercise of discretion and strategic and tactical decision-making needed to market the house successfully.
Gorsuch finds that, while Congress can seek the advice of experts in drafting a law’s substantive provisions, and while Congress also can assign details of implementing that law to others, “Congress alone can make laws regulating private conduct.” He cites the 1935 case of Panama Refining Co. v. Ryan for that proposition. The Court has come to require three core elements to be met to have a valid delegation to another entity. One, Congress itself must have the constitutional authority to act in that area of policy. After all, one cannot authorize another to do what one cannot do oneself. I cannot just authorize another to sell your house. Two, Congress must sufficiently clearly define the objectives and limits of the agency’s authority (a proper “enabling provision”). Three, Congress must provide standards and procedures by which the agency, Congress, and the courts can judge whether the agency’s actions fall within the enabling provision (“the intelligibility principle”). This remains the constitutional law of the non-delegation doctrine.
So far, so good. What Gorsuch fails to mention is that the two times the Court has struck down delegations by Congress to the President or an agency occurred in 1935, first in the aforementioned Panama Refining Co. (the “Hot Oil” Case) and again in Schechter Poultry Co. v. U.S. (the “Sick Chicken” Case). Since then, the Court has not found an unconstitutional delegation by Congress, no matter how broad or ill-defined the grant was. The justices have striven to avoid even directly addressing the non-delegation doctrine in rather obvious cases, much to the frustration of some concurring or dissenting colleagues.
The Missed Opportunity in the “Line-Item Veto” Case, Clinton v. City of New York.
For example, in Clinton v. City of New York in 1998, the Court struck down a statute which gave the President the authority to cancel certain previously-authorized tax breaks and appropriations if specified conditions were met. The majority decided that the law constituted an unconstitutional line-item veto. The issue grew out of Congress’s recognized inability to control its spending and was, in a curious way, a cri de coeur from Congress to the President to save that body from itself by canceling funds it had appropriated.
The problem with the majority’s opinion in that case is that the one thing the statute was not was a line-item veto, for reasons not relevant to the point of the example. The majority was misled by the statute’s simplistic title. Rather, the statute was a delegation of legislative authority to the President. Justice Antonin Scalia, in dissent on the constitutional matter, analyzed the statute and upheld it under the non-delegation doctrine. The dissent by Justices Stephen Breyer and Sandra Day O’Connor differed from Scalia’s in its analytical approach but used similar factors as Scalia did and also would have upheld the law as a valid delegation by Congress. The case shows both the Court’s reluctance to engage with the non-delegation doctrine and the eagerness of those who would do so, here the dissenters, to uphold delegations even of a core congressional power, that of the purse.
More recently, there have been some judicial stirrings that the non-delegation doctrine might be revived from its constitutional coma. In 2019, in Gundy v. United States, the Supreme Court upheld a challenged delegation, but the vote was 5-3. The dissenters wanted to revise the current analysis and permit Congress to delegate to other entities only a power to supplement legislation with factual and procedural details. Congress would have to decide clearly the policies and objectives. The author of that dissent was—Justice Gorsuch.
Significant, too, was that one of the five who voted to uphold the statute, Justice Samuel Alito, did not join the constitutional analysis of the others. Like the dissenters, Alito wrote that he favored reconsidering the lax standards of the traditional non-delegation doctrine. Finally, Justice Brett Kavanaugh, who was not on the Court at the time Gundy was decided, subsequently referred to the Gorsuch dissent in favorable terms. This suggests that at least five justices favor a reinvigoration of the non-delegation doctrine. Justice Amy Barrett might well be the sixth. The problem remains that calls to strengthen application of the non-delegation doctrine to void agency action and to push Congress to perform seriously its constitutional duty of legislation have been heard often yet have not been actualized in nearly a century.
Proposal: Strengthen Independent, Non-Deferential Judicial Interpretation of the Validity of Agency Rule-Making.
Justice Gorsuch presents another judicial tool in his Slaughter concurrence to assist Congress in reigning in the bureaucracy. He cites the 2022 case West Virginia v. EPA, which limited the effect of the Chevron doctrine regarding agency rule-making. As I discussed in a prior post, the Chevron doctrine was very deferential to agencies’ rule-making and required courts to uphold an agency’s interpretation of a vague statute, as long as that interpretation might be deemed reasonable. As one might readily conclude, the bounds of reasonableness were quite ill-defined, so courts simply relied on the agency’s minimal showing of some plausible connection between the regulation and Congress’s enabling statute. Chevron essentially was an abandonment of that constitutional field by the judiciary. The case left it to Congress to correct agency overreach, an effort not frequently undertaken. Chevron’s holding came under criticism, as agencies claimed far-ranging regulatory authority from vague statutes in increasingly brazen manner.
West Virginia v. EPA overrides the Chevron Deference Doctrine when Agency Rule-Making Has Significant Economic or Political Effect.
In West Virginia, a 6-3 decision with an opinion authored by Chief Justice Roberts, the Court announced the “major questions doctrine.” That new judicial approach requires an agency that claims that Congress has delegated to it an extraordinary regulatory power to justify a challenged regulation must identify clear statutory authority for that power. In West Virginia, the EPA claimed that it could adopt regulations under the Clean Air Act to revamp the entire electrical generation process in the United States by shifting such generation from certain sources, such as coal, to others, such as “renewables.” The Court disagreed, holding that the EPA could not rely on vague or broadly-worded statutory language when its proposed rule would have major economic or political significance. The language of the Clean Air Act was not sufficiently clear for such a major restructuring of electricity generation. Technically, West Virginia did not affect Chevronif a regulation was not one of major effect. However, whatever remained of Chevron was overruled in 2024 in Loper Bright Enterprises v. Raimondo.
It is no surprise that Gorsuch would cite to West Virginia. First, he authored a concurrence in that case (and in Loper Bright Enterprises) which strongly emphasized separation of powers principles. As the Constitution’s framers understood and stated, separation of powers is not an end, but means to an end. That end is the protection of personal liberty by dividing powers, so that “ambition [can] be made to counteract ambition,” to borrow from Madison’s language in The Federalist, No. 51. Over the years, Supreme Court justices have reiterated that understanding. Gorsuch charged that, by broadly deferring to agency interpretation of what are typically vague grants of authority in enabling statutes passed by Congress, the courts abandoned their constitutional duty to interpret those statutes.
The agencies, meanwhile, combined within themselves powers of legislation (rule-making), enforcement of those rules (executive power), and adjudication (interpreting the meaning of the statutes they enforce and the rules they make). Hence, by commanding courts to defer to agencies’ claims of authority from vague statutes, Chevron violated the structure of separation of powers. As a consequence, that doctrine also undermined individual liberty against arbitrary government action. To comply with the structure of separated governmental powers in the Constitution, Congress must provide clear statutory authority, and the courts must independently interpret the meaning and reach of those statutes. The goal is to ensure that agencies “do not ‘exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond those the people’s representatives actually conferred on them.”
Loper Bright Enterprises Rejects Chevron Deference.
Of course, determining what constituted a “major question” would be the difficult riddle to solve. It also made no logical sense to say that only in such cases an agency had to point to clear statutory authority, and only then the courts would exercise independent judgment. Therefore, it was an easy step for the Court in Loper Bright Enterprises to reject Chevron deference entirely. As an aside, it must be noted that in Loper Bright Enterprises, the majority relied on a statute, the Administrative Procedure Act, for its decision. Gorsuch, in yet another concurrence, agreed with the majority’s reasoning but wanted to go further to anchor his reasoning once more in fundamental constitutional principles of separation of powers and judicial responsibility to interpret federal law without deference to unelected agencies.
The Non-Delegation Doctrine and the Abandonment of Chevron Deference Complement Each Other.
Second, the holding in West Virginia complements the non-delegation doctrine, as does the holding in Loper Bright Enterprises. Indeed, some see these approaches to congressional delegation of rule-making power as two sides of the same coin. Congress must be clearer as to what it wants agencies to do and must provide clearer guidance to agencies about how to do it. If Congress instead drafts vague and broadly-phrased delegations, an agency regulation could be challenged because Congress in the underlying enabling statute failed to meet the invigorated second and third elements of traditional non-delegation analysis. The delegation itself is invalid, even though the agency regulation arguably is within the reach of the (admittedly vague) statute.
Alternatively, a court could find independently that the agency’s regulation is beyond the scope of the vague enabling statute because the court is no longer bound to adhere to the agency’s interpretation of its own powers and because, at least in major questions, the agency cannot point to sufficiently clear statutory authority to justify its regulation. The statutory delegation itself might or might not be valid due to its vagueness, but this agency regulation is not within that delegation in any event. The second approach is less intrusive into the powers of Congress, a co-equal branch because it avoids finding the enabling statute unconstitutional and, instead, focuses only on the agency’s rule-making in that case. With either situation, in Gorsuch’s reasoning, the basic constitutional structure of separation of powers is violated, either by Congress in its unduly vague statute or by the agency in its ultra vires regulation.
Applying Constitutional Protections of Individuals’ Trial Rights in Agency Adjudications
Finally, Gorsuch in Slaughter briefly turns to the problem of agencies’ exercise of judicial powers when adjudicating disputes before them. It has long been a quip among legal cynics that “agency due process” is an oxymoron. That topic deserves thorough discussion of its own. Briefly stated, the troubling tension between agency adjudications and constitutionally protected individual rights was more fully developed by the Court in Jarkesy v. SEC in 2024.
Unlike Slaughter, which addresses the administrative state’s intrusion on executive power, and West Virginia v. EPA, which concerns the administrative state’s appropriation of legislative power, Jarkesy focuses on the administrative state’s corruption of judicial power. In that sense, the case complements Loper Bright Enterprises, in which the Court likewise re-asserted the judiciary’s power to interpret laws without being handicapped by bureaucratic agencies.
In essence, the Seventh Amendment guarantees a right to a jury trial in civil cases which would have been tried to a jury at common law. The SEC has jurisdiction over, among other matters, securities fraud. The SEC investigated Jarkesy for securities fraud, using rules and regulations it had adopted, brought a civil action against Jarkesy before its own administrative law judge under procedures it had adopted, and imposed a $300,000 civil penalty when Jarkesy was found liable by its administrative law judge. In other words, the SEC acted as lawmaker (arguably within the authority granted by Congress), prosecutor, and judge, all without there being a jury trial. The Supreme Court held that the SEC violated Jarkesy’s Seventh Amendment civil jury trial right because the penalties the SEC sought and the underlying fraud claim resembled the type of civil action traditionally tried in courts before a jury. Left
In his concurring opinion in Jarkesy, Gorsuch, joined in full by Justice Clarence Thomas, once more goes beyond the majority’s holding. He also addresses the case through the lens of a 5th Amendment due process claim. Giving the SEC the power to make regulations (legislate), then enforce those regulations itself (execute the law), and then try the violation internally and impose a penalty (adjudicate) not only goes against constitutional principles of separation of powers but also violates due process. This is a potentially earth-shaking position which challenges the constitutionality of these agencies’ traditional structure through the Bill of Rights with its express limitations on government power, rather than relying on the more ambiguous structural formalisms of separation of powers.
The Administrative State’s Corrosion of the Line between Civil and Criminal Cases.
In passing, one might also note a separate issue not extensively addressed, namely, the blurring of the line between civil enforcement and criminal enforcement, at least when only a fine, not incarceration, is at issue. Criminal enforcement requires a higher burden of proof from the government and provides more constitutional protections for the defendant. It is no wonder, then, that the government prefers the system the SEC had in place, one found also in many other agencies. Gorsuch notes the punitive character of the penalty as not being in the classic nature of a civil action to compensate a victim but does not therefor repudiate its claimed civil character. Regrettably, he still includes it within his general civil 7th Amendment and due process analysis.
Justice Gorsuch has much to say about the role of the courts of meeting their responsibility of maintaining the boundaries which the Constitution sets through the separation of powers among the three, not four, branches of government to avoid concentration of power in one. This responsibility extends to prodding Congress into action to control agency regulatory discretion better, as well as to bolstering the ability of defendants caught in the enforcement web of those agencies to defend themselves by using traditional Bill of Rights protections.
In the final post, I will offer some concerns about how realistic it is to expect a lasting impact from the Court’s opinions in the line of cases I have covered in this series. Especially, how likely it is that Justice Gorsuch’s appeals to the better angels of our constitutional tradition can hold back the relentless growth without accountability of the administrative state?
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