Article I, Section One vests “[a]ll legislative Powers” in Congress. Among other things, this means that “[e]xcept in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature.” Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting). Neither the text itself nor the structure embodied in that text permit Congress to delegate the power to make the law to another entity (or, for that matter, a sub-part of itself). Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); see Loving v. United States, 517 U.S. 748, 771 (1996) (“Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes.”); Bowsher v. Synar, 478 U.S. 714, 736-59 (1986) (Stevens, J., concurring in the judgment).
Well, that’s the theory. In practice, things look quite different. Federal administrative agencies “wield vast power and touch almost every aspect of daily life.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010). These agencies promulgate regulations, adjudicate disputes, instruct regulated parties as to how to comply with the law, etc.–making law in substance if not technically in form. Given the alphabet soup of federal agencies and the reams of regulations they promulgate annually, one would be forgiven for thinking that these federal agencies are really the ones doing the legislating, not Congress. City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting). This is especially so since congressional statutes frequently lay down little more than vague “intelligible principles” to guide agencies in implementing and enforcing the law. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). No wonder, then, that agency action takes the shape of “quasi-legislation” despite purportedly being only a species of executive action. SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (observing how agencies “fill in the interstices” of statutes “through th[e] quasi-legislative promulgation of rules”); see FMC v. S.C. State Ports. Auth., 535 U.S. 743, 774 (2002) (Breyer, J., dissenting) (“The term ‘quasi legislative’ . . . indicate[s] that the agency uses legislative like . . . procedures but that it is not, constitutionally speaking, . . . a legislature,” and “in exercising these powers, the agency is engaging in an Article II, Executive Branch activity.”).
Throwing “quasi” in front of the word doesn’t substantively ameliorate the constitutional concerns that arise when executive branch actors legislate in Congress’s stead. See Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1240-55 (2015) (Thomas, J., concurring in the judgment). The Court has nevertheless largely permitted this renovation of the constitutional allocation of powers, balking only in the rarest and most extreme circumstances. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 (1935) (“Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable . . . .”).
We have at least, on occasion, been assured that this scheme of legislative delegation to agencies that allows the executive branch to wield this “quasi-legislative authority” must at least “be rooted in a grant of such power by the Congress . . . .” Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979). In simpler terms, agencies can only act when Congress permits them to act–agencies aren’t free to roam about and do anything they think good and reasonable unless Congress first authorizes them to do so.
Except not exactly in reality. See, with Chevron in place, the congressional authorization requirement is more-or-less a paper tiger. Chevron, after all, stands for the proposition that sometimes Congress’s delegation of power to an agency is “implicit,” and such delegation can be found even when the statute is “silent . . . with respect to the specific issue.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984).
In other words, Congress doesn’t really need to make a “grant of [quasi-legislative] power” to an agency before the agency can exercise such power. Whenever there’s a statute with an ambiguity (or a “pregnant silence,” if you will) and an agency with authority to execute that statute, Congress is presumed to have delegated to the agency lawmaking power to clarify any ambiguities or fill up any gaps–even if Congress didn’t actually do so. See id. at 845 (approving agency action where “Congress did not actually have an intent” on the point).
Chevron thus means that no authorization at all may still constitute “an implicit delegation of rule-making authority [to agencies] . . . to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress.” Michigan v. EPA, 135 S. Ct. 2699, 2713 (2015) (Thomas, J., concurring). Through Chevron, the Court has permitted “a body other than Congress to perform a function that requires an exercise of the legislative power,” despite the fact that Congress did not technically grant such power to that other body as the Constitution requires (at a minimum). Id.
The Court has tried to resolve the strain here by viewing Chevron as a background rule of which Congress has adequate notice. The theory goes that Congress is aware of Chevron, and so, when legislating, Congress knows that whenever it leaves ambiguities (or those curious pregnant silences) in statutes, that will be treated as an implicit delegation of power to an agency. Because Congress knows about this, ipso facto, Congress must intend to delegate power to an agency whenever it leaves an ambiguity or a gap in a law. It’s a pretty neat trick: Congress can delegate legislative power to administrative agencies without ever having to speak in those terms. Sloppy drafting or silence will sometimes do!
Setting aside issues with imputing a single, homogeneous “intent” to a collective body such as Congress when that intent is not made explicit collectively, this “fiction” fails to repair the constitutional infirmity of permitting “implicit” or “silent” delegations of lawmaking power to agencies. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2148 (2016) (Thomas, J., concurring). This is probably most obvious in instances of statutory silence. When should silence mean “delegation,” and when should silence mean that Congress did not give the agency power to act in that space? How is the Court supposed to figure out Congress’s delegatory “intent” in silence?
The Court sometimes finds itself caught in this precise predicament. So, for instance, in the recent 5-4 decision in SAS Institute Inc. v. Iancu, the Court concluded that a statute did not leave “room” for an agency to exercise a “wholly unmentioned . . . power.” No. 16-969, slip op. at 12 (Apr. 24, 2018). In this case, the majority reasoned that the “silence” was not of the delegatory variety. The dissent, however, disagreed. Illuminating just how dubious Chevron‘s fiction has become, Justice Breyer articulated his view of Chevron, explaining that the doctrine allows courts to construct a “hypothetical reasonable legislator” in the face of statutory silence and ask “what such legislators would likely have intended had Congress considered the question of delegating gap-filling authority to the agency.” Id. at 1, 9 (Breyer, J., dissenting).
To review: Congress must grant agencies “quasi-legislative authority” before they can exercise that power. Chrysler Corp., 441 U.S. at 302. But under Chevron, the Court may find “implicit” delegations whenever it imagines that a hypothetical Congress would have given power to an agency on a certain point had Congress thought to do so, despite the fact that Congress didn’t actually delegate that power to the agency in the law that was enacted. Thus, Chevron in practice abrogates (or at least comes very close to doing so in effect) the requirement that Congress actually delegate quasi-legislative authority to agencies before they can wield the same.
A brief review of the Court’s jurisprudence in related areas reveals that, setting aside the aforementioned issues, Chevron‘s delegation-by-implication rule is also something of a sore thumb. For instance, consider how when “Congress intends to alter the usual constitutional balance between the States and the Federal Government,” the Court has required that Congress “must make its intention to do so unmistakably clear in the language of the statute” before the Court will construe a statute in a way that implicates Tenth Amendment/Federalism concerns. Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (cleaned up). Per this “plain statement rule,” the Court will not presume Congress has modified the structural-constitutional balance unless Congress makes it painfully obvious that it has done so.
Likewise, when Congress legislates in a field that the states have traditionally occupied, the Court assumes “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). More generally, the Court has long “construe[d] ambiguous statutes to avoid constitutional problems” on the assumption that Congress legislates in light of, and within the bounds of, constitutional restrictions and limitations. Citizens United v. FEC, 558 U.S. 310, 373 (2010) (Roberts, C.J., concurring); Jones v. United States, 526 U.S. 227, 239-40 (1999). Indeed, the Court’s “jurisprudence abounds with rules of ‘plain statement,’ ‘clear statement,’ and ‘narrow construction’ designed variously to ensure that, absent unambiguous evidence of Congress’s intent, extraordinary constitutional powers are not invoked, or important constitutional protections eliminated . . . .” Cipollone v. Liggett Grp., 505 U.S. 504, 546 (1992) (Scalia, J., concurring in part and dissenting in part) (emphasis added).
The Court has various clear statement rules, particularly “[i]n traditionally sensitive areas, such as legislation affecting the federal balance.” Bass, 404 U.S. at 349. Why, then, when Congress enacts legislation “affecting the federal balance” by giving lawmaking powers to agencies, doesn’t the same rule apply? Why, in fact, is it precisely the opposite–that Congress can delegate power to an agency simply through poor draftsmanship or oversight?
This is rather curious. When it comes to federalism (the key vertical-structural constraint embodied in the Constitution), the Court requires “unmistakably clear” language from Congress before presuming the legislature has “alter[ed] the usual constitutional balance” between states and the federal government. However, when it comes to separation of powers (the key horizontal-structural constraint embodied in the Constitution), the Court not only allows for implicit transfers of lawmaking power from the legislature to the executive, but in fact the Court has gone out of its way via Chevron and presumed that ambiguities or silence in a statute amount to a delegation of “quasi-legislative” authority to an agency.
Executive lawmaking is certainly “extraordinary”–if not in practice anymore, at least when considering the matter from the perspective of “constitutional power[.]” Cipollone, 505 U.S. at 546 (Scalia, J., concurring in part and dissenting in part). And, of course, the tripartite allocation of constitutional power is an “important constitutional protection[,]” id.–indeed, it is the most important constitutional protection. See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (“The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government. . . . Without a secure structure of separated powers, our Bill of Rights would be worthless . . . .”).
Why, then, shouldn’t a clear statement rule govern here as well in lieu of Chevron? Unless and until Congress actually and explicitly delegates particular authority to an agency to regulate in a specific domain, statutory ambiguities and statutory gaps shouldn’t amount to “implicit delegations” of lawmaking power. In those cases where there may be a delegation but that delegation is so broad as to lack meaningful legal content–for instance, instructing an agency to act “if public convenience, interest, or necessity will be served thereby,” 47 U.S.C. § 307(a)–the Court could simply decline to give the challenged agency action the force and effect of law.*** Congress shouldn’t be encouraged to draft vague laws. Congress certainly shouldn’t be allowed to reconfigure the constitutional allocation of governmental powers by implication or ambiguity. A clear statement rule could do quite a bit of good here.
“‘[T]he integrity and maintenance of the system of government ordained by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.” Mistretta v. United States, 488 U.S. 361, 371-72 (1989) (quoting Field v. Clark, 143 U.S. 649, 692 (1892)). This being the case, when Congress does delegate its legislative power away, de jure or de facto, the Court should force Congress to be explicit about what it is doing, to ensure that Congress has fully taken into consideration “the integrity and maintenance” of our form of government before modifying it. Chevron cuts the wrong way here, letting Congress rejigger the separation of powers through sloppy drafting, implication, and even silence.
In one of his final written opinions before retiring, Justice Kennedy admonished:
[I]t seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.
Pereira v. Sessions, No. 17-459 (June 21, 2018) (Kennedy, J., concurring), slip op. at 3. The Court will hopefully accept the invitation and take up an appropriate case soon. If and when it does so, here’s to hoping the Court fully considers how “[t]he proper rules for interpreting statutes” in this context might be better crafted to fully “accord with constitutional separation-of-powers principles . . . .”
***As opposed to a full-fledged reinvigoration of the nondelegation doctrine, which could result in the Court invalidating all-at-once a host of statutory provisions in the U.S. Code.