About The Non-Delegation Doctrine

In two recent Supreme Court cases, Justice Rebecca Bradley accuses two public agencies of acting illegally. A major factor behind her hostility, it seems, is something called the non-delegation doctrine.

Often when faced with a problem, Congress, the Wisconsin Legislature, or local legislative bodies will pass a law aimed at handling the problem. Often the law will be written in very broad terms, leaving development of the details to another government agency. In the view of non-delegation purists, this delegation to the agency violates the separation of powers principal, which is viewed as prohibiting any mixing of the legislative, executive, and judicial powers.

Such delegations have a number of advantages, including the development of expertise in the agency which is impractical for the Legislature itself, avoiding conflicts of interest inherent if the legislators managed their own election, flexibility to respond to environmental challenges such as pandemics, and enabling the Legislature to respond to a variety of challenges without finding them overwhelming.

The first of these cases, called Teigen v. Wisconsin Elections Commission, illustrates these advantages in practice. The WEC was able to develop expertise in the management of elections and share this expertise with local election clerks. Unfortunately, the WEC or some other nonpartisan board has not been given responsibility for redistricting, at a cost to democracy in Wisconsin.

When COVID-19 struck, making it very dangerous for people to attend public gatherings, the WEC responded by issuing guidelines for drop boxes and a suggestion that local election agencies forego the practice of trying to force nursing homes to accept visits from election officials to collect absentee ballots from the residents. In the view of many, these measures were exactly what was needed at the time, and probably saved lives.

The subsequent Supreme Court decisions overruling the WEC and making safe voting more difficult or impossible likely reflect the influence of the non-delegation doctrine. If one believes that the WEC is unconstitutional it is hard to defer to its decisions. Rather than saying that drop boxes are illegal because they are not mentioned in the statute, democracy would have been better served by concluding that they are legal because the law does not prohibit them, and are probably more secure than using the mail.

In the second case, called Becker v. Dane County, the non-delegation doctrine dominates Rebecca Bradley’s dissent. She devotes more than 30 pages to the doctrine, claiming that the establishment of the combined Dane County and Madison health department is illegal because it violates the United States and Wisconsin constitutions.

The logic for this claim goes something like this: She starts by quoting James Madison in Federalist Papers number 74: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, … may justly be pronounced the very definition of tyranny.” She then claims that “the Dane County Board bestowed on Heinrich (the health commissioner) all three of these powers … even though our constitutional order is founded on the axiom that they should be ever kept separate and distinct.”

This happened, according to Rebecca Bradley because the “County Board unlawfully gave her powers that no elected official in this state possesses: the power to write the rules” (the legislative power), “interpret their meaning” (the administrative power), “and impose punishments of her choosing for violations only she may declare” (the judicial power).

“Just because prior courts failed to uphold our constitution does not give this court license to perpetuate its dereliction of duty.”

Does the non-delegation doctrine offer a workable model for the United States and Wisconsin? Applied literally, with legislatures prohibited from delegating issues to specialist agencies, the likely result would be legislative gridlock. It is likely that most legislatures would find themselves lacking the capability to delve into the details of, say, global climate change, how to control a dangerous disease, or managing elections.

That prospect, that government will grind to a halt, is, I suspect, part of the appeal of the doctrine to some on the right, the folks who hope to reverse the New Deal. For those committed to “draining the swamp,” the doctrine’s very destructiveness of intelligent government may add to its appeal.

Others may be more reluctant to hobble the ability of legislatures to delegate. An academic article about the conservative icon, U.S. Supreme Court Justice Antonin Scalia, examines his ambivalence towards the non-delegation doctrine. The article concludes that “the Supreme Court has had no fiercer defender of the nondelegation principle than Justice Antonin Scalia, and no more deferential implementer of that principle when it came to applying it in real cases.”

Scalia wrote two major opinions applying the non-delegation doctrine: in the first, he wrote a lone dissent concluding that Congress’s establishment of the United States Sentencing Commission was unconstitutional because Congress assigned no function to the Commission other than the making of rules, making it a sort of “junior-varsity Congress.” In the second, he wrote for a unanimous Court upholding a very broad delegation of rulemaking power to the Environmental Protection Agency (EPA).

Where does the non-delegation doctrine come from? Justice Rebecca Bradley would have one believe that it is part of the constitution. But neither the federal nor the Wisconsin constitution makes any mention of the doctrine. Instead, they point to article 1 of the US constitution which states that “All legislative Powers herein granted shall be vested in a Congress of the United States …” But by prohibiting delegation, the doctrine would seem to limit the Congress’ ability to wield its legislative powers.

Supporters of the doctrine often respond that it comes from the Federalist Papers, particular number 47, written by Madison and was part of the argument for the then-proposed constitution. It starts by observing that “One of the principal objections inculcated by the more respectable adversaries to the Constitution, is its supposed violation of the political maxim, that the legislative, executive, and judiciary departments ought to be separate and distinct.” The US and Wisconsin constitution do indeed have examples where powers overlap. For example, through the veto both the president and governor share in the power to enact legislation. Likewise, the Congress’ control over impeachment gives it a judicial power.

Madison argues that “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.”

Two recent academic studies help to debunk some of the myths about the non-delegation doctrine.  One found that based on the historical record “the Founders didn’t believe that broad delegations of legislative power violated the Constitution.” The other, based on a dataset of every federal and state nondelegation challenge before 1940 concluded that the non-delegation doctrine “never actually constrained expansive delegations of power.

Democracy in Wisconsin and the US is currently under attack. One source is a former president who refuses to recognize that he lost the last election. However, there are other threats as well, such as Trump’s Schedule F that would have allowed agencies to convert existing career officials with policymaking roles into political positions. These threats are real, but the non-delegation doctrine does nothing to protect us from them.