Academic

Lemos on Judiciall Administered Statutes & Nondelegation

By Lawrence Solum

Margaret H. Lemos (Benjamin N. Cardozo School of Law) has posted The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine (Southern California Law Review, Vol. 81, 2008) on SSRN. Here is the abstract:

The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate - the federal judiciary.

This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with respect to agencies, the constitutional principles underlying the doctrine apply with full force to delegations to courts. In principle, then, the nondelegation doctrine extends equally to both of Congress's delegates. In practice, matters are more complicated. Despite judicial rhetoric to the contrary, virtually unlimited delegations to agencies long have been tolerated, even welcomed. To the extent the modern Court has enforced the nondelegation doctrine in the administrative context, it has been through narrow statutory construction rather than constitutional decree. The narrow-construction strategy does not make sense as a means of limiting courts' own discretion, however. Nor do the functional arguments that have been offered in defense of a hands-off attitude toward broad delegations to agencies work when applied to courts. Far from justifying nondelegation law's inattention to courts, considerations of institutional structure and capacity suggest the need for careful evaluation of statutes administered by unelected, generalist judges.

To be sure, the features that set courts apart from agencies also may make them particularly valuable delegates in certain areas of the law. The goal of this Article is not to condemn all delegations to courts, but rather to demonstrate that they warrant more attention than they currently receive. There has been a robust debate about the constitutional permissibility and functional desirability of delegations to agencies. We need to have a similar conversation about delegations to courts.

And here is some more from the text:

But if judges inevitably make some law in the course of deciding cases, perhaps that itself is reason to distinguish between courts and agencies for purposes of the nondelegation doctrine. For example, given the Framers? experience with the common law tradition, it may be tempting to suggest that the phrase ?the judicial power? in Article III necessarily connotes a lawmaking function. Yet those who have studied the issue have denied that anything useful can be gleaned about the founding generation?s understanding of ?the judicial power.? The problem is in part a paucity of relevant evidence166 and in part changed understandings. Recall that, at the time the Constitution was adopted, the prevailing understanding of common law judging was that common law principles were out there, waiting to be "discovered" and applied by judges.167 Accordingly, even if it were clear that the Framers believed that the judicial power included the power to render decisions in the common law tradition, there would still be reason to doubt that their understanding of the judicial power included the capacity to make law in the creative, policy-driven way that we understand that term today.168

Highly recommended.

Just a brief comment on the problem of distinguishing "judicial power" from "legislative power," from the perspective of the "New Originalism" or "original public meaning originalism."  The first step, interpretation, would be attempt to determine the semantic content of the phrases, ?executive power,? ?legislative power,? and ?judicial power?.  If the original public meaning answers the question about delegation of power to the judiciary, that would be the end of the matter.  But if the phrases "judicial power" and "legislative power" are vague, then a second step, construction, would be required.

Let me illustrate this approach by examining a question about the line between executive and legislative power that is related to (but distinct from) the question that Lemos examines in her article: is the power to hold an administrative hearing executive or judicial?   Arguably, the semantic meaning of these phrases is vague so that their semantic content does not determine their application to administrative hearings.  Hearings partake of some of the characteristics of the judicial function, but administration of the laws is executive in nature.  If so, then construction would be required.

Notice, however, that vagueness does not entail that the provisions are indeterminate. For example, it might be the case that conducting a trial on an action of trespass on the case is definitely within the meaning of the phrase judicial power and definitely outside the meaning of the phrases ?legislative power? and "executive power.? If that were the case, then the vague constitutional text would nonetheless determine a case in which it was alleged that Congress?s decision to conduct a trial in an action of trespass on the case was unconstitutional as beyond the legislative power--and the same result would occur if Congress tried to give an executive agency this power.

This suggests a picture of vagueness in the case of the relationship among the three powers could be represented by this diagram:

In the diagram, each of the three powers has a core of determinate meaning?represented by the inner circle. The outer circle (or ?penumbra?) represents the zone of underdetermination (vagueness)?where the semantic content of the phrase does not determine its application. The shaded overlaps suggest that there are cases in which penumbras of the rules overlap, and a particular action could be characterized as falling under two or more of the three categories. The example of a trial in a trespass action is located in the core of determinate meaning of the phrase judicial power. The example of an administrative hearing is located in the overlapping penumbras of judicial power and executive power.

This brings us back to Lemos's argument.  The key passage from the paragraph of text quoted above was: "even if it were clear that the Framers believed that the judicial power included the power to render decisions in the common law tradition, there would still be reason to doubt that their understanding of the judicial power included the capacity to make law in the creative, policy-driven way that we understand that term today"  But in this paragraph, Lemos is ambiguous as between the semantic content of the phrase judicial power and background assumptions (about common law methodology) that might create expectations about how the phrase "judicial power" might be construed.  As Jack Balkin has convincingly argued, the core commitment of originalism is to the original public meaning (the conventional semantic meaning at the time of constitutional utterance), but not to "original expected applications."

So it is not clear to me that Lemos has really demonstrated that delegations to the judicial branch are outside of the permissible "zone of construction" of the relationship between "legislative  power" and "judicial power."  And of course, if these delegations are in the zone of construction, then a theory of constitutional construction (outside the scope of this post) would be required.

Read Lemos!

Full post as published by Legal Theory Blog on March 12, 2008 (boomark / email).