How Much Power does the Executive Have? The Court’s Reinterpretation of Nondelegation
Continuing recent trends toward greater governance through executive orders under Barack Obama and Donald Trump, Joe Biden will likely rely heavily on executive orders to implement his platform. Since the Senate is evenly split between Democrats and Republicans, President Biden likely will not have enough votes to pass many of his policy proposals through Congress. As such, he will be especially reliant on executive orders. At the same time, the Supreme Court has begun to shift its views on limiting executive power. In National Federation of Independent Business v. Occupational Safety and Health Administration this January, the Court decided against OSHA’s COVID-19 workplace regulations, arguing that a bureaucratic executive agency does not have the power to implement such regulations.1 With this decision, the Supreme Court has created a new precedent regarding limits on executive power. While the Court has let executives exercise broad powers through executive and regulatory actions since the New Deal era, recent rulings have shown a shift in the court’s interpretation of limits on executive power. This ruling cements the Court’s new, more limited definition of executive power, forming a new precedent through a reinterpretation of the nondelegation doctrine.
The nondelegation doctrine, which argues that Congress cannot give law-making powers to another governmental body, follows from both Article I of the Constitution and theories on the separation of powers. Article I states that Congress cannot delegate decision-making powers to other branches of government.2 Congress’ inability to give its powers to other branches of government supports the theory of separation of powers. Importantly, this doctrine implies that Congress cannot let administrative agencies and the executive branch have broad powers to originate regulation. The Supreme Court refined this idea in its most important interpretation of the nondelegation doctrine in J.W. Hampton Jr. & Co. v. United States (1928). J.W. Hampton & Co. complained that the executive overstepped its bounds by assigning a tariff to the company beyond what was fixed in the statute of the 1922 Tariff Act, though Congress had delegated the ability to set tariffs to the executive.3 The Court set an important precedent in ruling that Congress may delegate powers to regulatory agencies as long as it sets an “intelligible principle” for the agency to follow.4 This decision gave regulatory agencies in the executive branch greater ability to set regulations. While the Court’s decision still prevented Congress from giving broad powers to another branch, its interpretation on the basis of an “intelligible principle” critically gave the executive a greater ability to regulate.
In the decades following the 1935 decisions, the Court hesitated to challenge the executive’s power. The Supreme Court formalized deference to regulatory agencies when the language of a law is ambiguous with its 1984 decision in Chevron v. National Resources Defense Council. In this case, environmental groups like the NRDC challenged the Environmental Protection Agency’s (EPA) allowance of manufacturing plants adopting new equipment that did not meet emissions standards, as long as the overall emissions of the plant did not increase. In the Clean Air Act, Congress had not defined a “stationary source” of pollution, so the EPA implemented its own definition when implementing regulation.5 The Court upheld the EPA’s interpretation as reasonable and ruled that the EPA could implement its policy because Congress had not fully defined the term.6 The Court ruled on this issue again in the 2001 case Whitman v. American Trucking Association. The Court ruled that the EPA’s new air quality regulation was an unreasonable interpretation of parts of the Clean Air Act, since it considered implementation costs when setting standards.7 While the Court ruled against this specific regulation, it importantly upheld Congress’ delegation of regulatory powers to the EPA under the Clean Air Act under the “intelligible principle” standard.8 As seen in these two cases, the Court broadly supported regulatory agencies’ authority following its 1928 interpretation of the nondelegation doctrine.
However, the Court has recently begun to reject this trend in favor of limiting executive power. For instance, in 2014, the Court limited the EPA’s emissions regulation power.9 The Court has also shown a willingness to bar executive orders. When the conservative-leaning Court struck down many of Obama’s executive orders, some liberals claimed the Court was politically motivated. However, the Court struck down Trump’s initiatives at a higher rate than Obama’s.10 For instance, the Court rejected Trump’s proposal to change the 2020 Census and add a citizenship question, arguing that the administration did not have sufficient reasoning.11 The Court rejected Trump’s proposed change to Obama’s Deferred Action for Childhood Arrivals (DACA) policy for similar reasons.12 Even while upholding the nondelegation doctrine, the Court began to cast doubt on its interpretation. In Gundy v. United States (2019), the Court considered whether the Sex Offender Notification and Registration Act unlawfully delegated powers to the Attorney General’s office.13 Though the Court ruled that the Act was constitutional under the nondelegation doctrine, Justice Samuel Alito stated in the dissent that the Court should reconsider how it approaches issues of nondelegation.14 The Court’s recent decisions on executive orders demonstrate that the Court now feels less comfortable with allowing such broad executive power. Alito’s dissent indicated that any new position the Court takes on issues of nondelegation might constitute a significant reinterpretation of the doctrine.
The Court’s decision in NFIB v. OSHA proves that the Court has accepted a new doctrine regarding limits on executive power. In NFIB v. OSHA, the National Federation of Independent Business argued that OSHA had overstepped its bounds with its emergency COVID-19 regulations.15 OSHA had mandated that companies with over 100 employees require employees to receive a COVID-19 vaccine, or wear a mask and submit to weekly testing. The NFIB argued that this emergency act was a broad public health measure, and that OSHA had overstepped its authority. The Court ruled to reinstate a stay on OSHA’s emergency mandate.16 In the concurring opinion, Justice Neil Gorsuch notably cited the nondelegation doctrine but did not mention an “intelligible principle.” Rather, Gorsuch argued that delegation is important in this case because OSHA has issued a broad public health mandate that affects many citizens. Gorsuch looked to the size of OSHA’s regulation as a reason to rule against it.17 As such, Gorsuch took the “intelligible principle” issue off of the table, reinterpreting the question of nondelegation as one related to the magnitude of an agency’s regulation. This decision codifies the Court’s new view on executive power, opening the door to future limiting decisions on the basis of nondelegation.
While some may argue that the Court’s new views on executive power are politically motivated, the Court’s gradual shift to greater limits on executive actions by presidents of both political parties prove that its changed interpretation of the nondelegation doctrine was not purely political. The Supreme Court and most lower courts are composed of more conservative-leaning judges, leading some to believe that a push against executive power may just be the courts preempting Biden’s use of executive power.18 However, such a large reinterpretation of non-delegation will impact executives of both parties in future years. Additionally, Gorsuch wrote of his wish to reinterpret the nondelegation doctrine in 2019, when it was unclear who would win the presidency in the 2020 election. In the context of greater governance through executive regulation, it is clear that the Court wishes to limit executive power to prevent the executive from overstepping its boundaries.
While the Supreme Court largely allowed regulatory agencies and the executive to gain broad power after the New Deal era, the Court has shifted its interpretation of executive powers in recent years. Following the Court’s interpretation of nondelegation in NFIB v. OSHA, the Court has set a new precedent to limit executive powers. In the context of the Court recently striking down executive orders, it seems likely that the Court will invoke this new precedent in future cases to further limit the executive. This will have broad ramifications for the Biden administration, constraining the president’s ability to use executive power and regulatory agencies to promote his agenda.
References
1 NFIB v. OSHA, 595 U.S. (2022).
2 “Nondelegation Doctrine,” Balletopedia. https://ballotpedia.org/Nondelegation_doctrine.
3 J.W. Hampton Jr., & Co v. United States, 267 U.S. 394 (1928).
4 Ibid.
5 Chevron v. National Resources Defense Council, 467 U.S. 837 (1984).
6 Ibid.
7 Whitman v. American Trucking Association, 531 U.S. 457 (2001).
8 Ibid.
9 Amy Harder, “Supreme Court Ruling Backs Most EPA Emission Controls,” The Wall Street Journal (2014), https://www.wsj.com/articles/supreme-court-reins-in-some-of-epas-greenhouse-gas-efforts-1403534416?mod=article_inline.
10 Jacob Schlesinger, “Biden’s Hurdle: Courts Dubious of Rule by Regulation,” The Wall Street Journal (2021), https://www.wsj.com/articles/bidens-hurdle-courts-dubious-of-rule-by-regulation-11614701629.
11 Kendall, Brent. “Supreme Court Blocks Citizenship Question From 2020 Census for Now," The Wall Street Journal (2019), https://www.wsj.com/articles/supreme-court-census-citizenship-question-ruling-11561642213?mod=article_inline.
12 Kendall, Brent. “Trump’s Bid to End DACA Blocked by Supreme Court,” The Wall Street Journal (2020), https://www.wsj.com/articles/supreme-court-blocks-trump-cancellation-of-daca-immigration-program-11592489280?mod=article_inline.
13 Gundy v. United States, 588 U.S. (2019).
14 Ibid.
15 595 U.S. (2022).
16 Ibid.
17 Ibid.
18 Jacob Schlesinger, “Biden’s Hurdle: Courts Dubious of Rule by Regulation,” The Wall Street Journal (2021). https://www.wsj.com/articles/bidens-hurdle-courts-dubious-of-rule-by-regulation-11614701629.