COMMENTARIES
RETURNING TO FIRST PRINCIPLES
ERNEST GELLHORN*
Although occasionally questioned, the constitutional position of
administrative agencies has until recent years seemed secure.
Neither substantive due process nor the nondelegation doctrine,
under which grants of legislative power to the executive branch had
been challenged, could be viewed as serious obstacles to excessive
delegation or special interest legislation. 1 While it was generally accepted that the terms of the Constitution and the framers' intent did
not envision the sweeping powers given the agencies by the legislature, conventional wisdom held that the needs of both a modem
society and an international economy required nothing less in an
often hostile world. Challenges to administrative power as going
beyond the authority delegated to the agencies or, perhaps, beyond
2
that allowed by the Constitution were, therefore, readily dismissed.
Dissatisfaction with administrative regulation and other legislative
outcomes, however, has led to an academic reexamination of judicial review3 and the constitutional position of administrative agen* Regional Managing Partner, Jones, Day, Reavis & Pogue, Washington, D.C. B.A.
(1956), LL.B. (1962), University of Minnesota.
I. See A. KELLY, W. HARBINSON & H. BELZ, THE AMERICAN CONSTITUTION 501-10 (6th
ed. 1983) (discussing Supreme Court's rejection of substantive and economic due process
arguments in post-Lochner era and acceptance of broad federal regulatory power); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223, 1226
(1986) (finding that delegation doctrine is routinely invoked but checks neither agency discretion nor accountability).
2. K. DAVIs, ADMINISTRATIVE LAW TREATISE §§ 3.2-3.3 (2d ed. 1978).
3.
See J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS
4-59 (1980)
(arguing that indirect congressional and presidential authority are ineffective in checkingjudicial power); J. ELY, DEMOCRACY AND DISTRUST 131-34 (1980) (discussing problem created by
legislators who avoid making controversial decisions leaving lawmaking to administrators).
See generally Macey, Promoting Public-RegardingLegislation Through Statutory Interpretation:An Interest Group Model, 86 COLUM. L. REV. 223 (1985) (advocating traditional, strict approach to statutory interpretation).
345
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cies.4 These views, in turn, have been reflected in major decisions
of the Supreme Court overruling the legislative veto device 5 and rejecting Congress' reliance on nonexecutive or nonjudicial officers to
make executive or judicial decisions. 6 Now litigants increasingly assert that the independent agencies' constitutional position-outside
the executive branch-is illegitimate. 7 Because they are not recognized in any article of the Constitution, agencies such as the Securities and Exchange Commission and the Federal Trade Commission
are argued to violate the separation of powers concept embodied in
the constitutional structure.
Professors Lowi and Stewart agree that legislative power has been
delegated excessively to administrative agencies.8 The result, according to Lowi, is that the executive is given too much discretion,
that individual freedom is unduly restricted, and that governmental
power is being abused.9 The cornerstone of the Constitution-the
rule of law-has been breached by "legiscide,"' 10 and nothing short
of a termination of all executive discretion will restore this core concept of American constitutional governance.1 1
Less concerned with the scope of agency authority, Stewart argues that excessive delegation is due to the flawed approach of both
Congress and the agencies toward solving economic and social
problems. 12 The agencies and Congress have relied too heavily on
"command and control" regulations that prescribe particular solutions. The regulations are neither effective nor efficient because
4. Schoenbrod, supra note 1, at 1224-28 (examining Supreme Court's failure to formulate constitutional test for reviewing congressional delegation of powers).
5. INS v. Chadha, 462 U.S. 919, 959 (1983) (finding congressional veto provision unconstitutional without scrutinizing agency exercise of power).
6. Bowsherv. Synar, 106 S. Ct. 3181, 3192 (1986) (holding that congressional power to
remove agency officers who execute law violates separation of powers); Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 (1982) (holding that Congress had no
power to assign general article III business to article I bankruptcy courts).
7. E.g., Hastings v.Judicial Conference of the United States, 770 F.2d 1093, 1102 (D.C.
Cir. 1985) (declining to invalidate act of judicial agency on constitutional grounds); see also
Buckley v. Valeo, 424 U.S. 1 (1976) (confirming exclusive Presidential power to make appointments to federal agencies; congressional appointment of Federal Election Committee
members therefore held invalid); Ticor Title Ins. Co. v. FTC, 625 F. Supp. 747, 752 (D.D.C.
1986) (failing to reach argument that delegation of powers to agency was unconstitutional).
The constitutionality of independent agencies has never been fully adjudicated. Id. at 750-51.
8.
Lowi, Two Roads to Serfdom: Liberalism, Conservatism and Administrative Power, 36 AM.
U.L. REV. 295, 298-99 (1987); Stewart, Beyond Delegation Doctrine, 36 AM. U.L. REV. 323, 329-30
(1987).
9. Lowi, supra note 8, at 303-04.
10. Id. at 299 (defining "legiscide" as voluntary, self-conscious rendering of legislative
power to president and then to agencies).
11. Id. at 322. Lowi advocates reducing administrative discretion to restore the constitutionally mandated balance of power between the branches of government. See infra notes 3134 and accompanying text (detailing Lowi's theory).
12. Stewart, supra note 8, at 329-30, 341.
1987]
FIRST PRINCIPLES
347
markets are too complex to respond to the crude regulatory tools
available. 13 Stewart therefore calls for a reconstitutive strategy of
regulation-"transferring responsibility for detailed decisionmaking
out of the central government to institutional subsystems," includ14
ing the private market or state and local government.
I.
I would question, however, whether either analysis is correct.
Lowi and Stewart assert or assume that the central constitutional
problem is the delegation of power per se by Congress. They conclude that the resulting misuse is either inevitable and thus must be
eliminated, Lowi, 15 or is likely and thus should be confined, Stewart.1 6 While control of the delegation of power was a concern of the
constitutional drafters, it was not their central focus. The ineffectiveness of the prior governmental structure and the constraints on
executive power under the Articles of Confederation were primary
reasons behind the call for the Constitutional Convention in 1787.17
The constitutional problem that underlies the current dissatisfaction is that Congress has not fulfilled its constitutional responsibilities.' 8 Article I of the Constitution provides that "[a]ll legislative
Powers herein granted shall be vested in a Congress."' 19 Statutes
that allow administrators to determine what is in the "public interest, convenience or necessity" simply fail as exercises of that power.
To legislate is to make normative policy choices, and broad delegations are defective because they leave basic normative issues unanswered and thus within the realm of the delegate.
The theoretical foundation of this basic concept of legislative responsibility derives from John Locke's insistence that legislators
13. Id. at 330. Professor Stewart's analysis builds on the works ofJudge Stephen Breyer.
See Breyer, Analyzing Regulatory Failure: Mismatches, Less Restrictive Alternatives, and Reform, 92
HARv.L. REV. 547, 550 (1979). See generally S. BREYER, REGULATION AND ITS REFORM (1982).
14. Stewart, supra note 8, at 335.
15. Lowi, supra note 8, at 318-20.
16. Stewart, supra note 8, at 328-29.
17. See 1 J. MADISON, JOURNAL OF THE FEDERAL CONVENTION 29-53 (E. Scott ed. 1898).
Madison's account of the convention is the primary, contemporary, historical record. See also
M. FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 42-52 (1913) (noting
convention motivated by commercial inadequacies of government under Articles of Confederation); THE FEDERAL CONVENTION AND THE FORMATION OF THE UNION OF THE AMERICAN STATES
54-63 (W. Solberg ed. 1958) (citing state and federal resolutions calling for convention due to
ineffectiveness of governmental structure under Articles of Confederation).
18. For a more complete exposition of the foundation of the analysis here, see Aranson,
Gellhorn & Robinson, A Theory of Legislative Delegation, 68 CORNELL L. REV. 1,21, 37 (1982)
(discussing political, agency, and judicial processes in stimulating excessive delegation); see
also P. ARANSON, AMERICAN GOVERNMENT 588-96 (1981) (discussing legislative tendency to
deliver private benefits through bureaucratic process as result of interest group pressure).
19. U.S. CONsT. art. I, § 1.
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cannot delegate their legislative authority.20 The legislature's au-
thority to delegate its lawmaking power is severely constrained not
so much because of a fear of its possible misuse, but because of a
conviction that the people agreed to relinquish their most important
21
power only to representatives that they alone have chosen.
Locke's contractarian view, whereby the people accept collectively
imposed obligations over private authority, was accepted by the
framers. 22 Its fullest statement is in the separation of powers concept, borrowed from Montesquieu, and embodied in the first three
articles of the Constitution. 23 The grant of lawmaking power to
Congress is legitimated by the special and detailed processes outlined in the Constitution for selecting legislators and for regulating
the consideration and adoption of laws. 24 It is also reflected in article I's provision that all lawmaking power resides in Congress and,
25
by implication, nowhere else.
My point is not to quarrel with the conclusion that too much
power has been delegated or exercised by the executive. I fully
agree with Lowi and Stewart here. Rather, I am making two separate points. The first is that the legitimacy of administrative regulation, and the maintenance of the rule of law, is determined
constitutionally by adherence to the Constitution's norms. 26 The legitimacy of laws not subject to direct approval by the people is derived from the legality of the specific congressional enactments
authorizing them. 27 It is here that modem legislation has been
deficient.
This is not, I believe, simply a lawyer's legalism or love of symmetry. It goes to the heart of the problem and therefore its most effec20. J. LOCKE, Two TREATISES OF GOVERNMENT 380-81 (2d Treatise) (P. Laslett ed. 1960)
(stating that in contractarian view people accepted laws of legislature because acts of legislature were legitimated by power delegated from the people).
21. But see THE FEDERALIST No. 48, at 310-13 (J. Madison) (C. Rossiter ed. 1961) (using
tendency of state legislatures to absorb all state powers as example rationalizing grant of
defensive authority to other federal branches).
22. THE FEDERALIST No. 58, at 358-61 (J. Madison) (C. Rossiter ed. 1961) (noting that
popular election of legislators guarantees security of private rights). See Lowi, supra note 8, at
296 (stating that constitutional limits of power comprise social contract).
23. See B. DE MoNTEsQUIEu, THE SPIrr OF THE LAwS 201 (D. Carrithers ed. 1977) (naming three kinds of power as legislative, executive national power, and executive judicial
power).
24. U.S. CONST. art. I, § I (granting all legislative powers under Constitution to Congress). For the constitutional limits on this power, see id. art. I, §§ 2-4 (providing rules for
selection of legislators); id. art. I, §§ 5, 7 (establishing procedures for considering and adopting laws).
25.
Id. art. I, §§ 1, 8 (granting general and specific legislative authority solely to
Congress).
26. INS v. Chadha, 462 U.S. 919, 954 (1983) (holding delegation of authority can be
implemented only in accordance with article I).
27. Id.
1987]
FIRST PRINCIPLES
349
tive solution. Modern government's constitutional breach has been
its failure to abide by the Constitution's requirement that the legislature make all laws. As I (and others) have sought to show elsewhere, 28 the consequence that flows from this disregard of primary
constitutional obligations is that the administrative process is not
being used primarily to create public goods. The objections of
Lowi, Stewart, and others to modem regulation are that it is inconsistent with the public will, that it is being misused to overlegislate
and to create private benefits.2 9 This would not happen if the commands of the Constitution for legislation were more carefully followed. The coalitions by which broad delegations are enacted and
vague regulations are adopted would be more difficult to sustain.
Legislation would be more carefully considered. It is also likely that
fewer laws would be enacted.
II.
If Lowi and Stewart make their proposals as political reformers
suggesting policy solutions to public problems, I might not question
their papers. They are less persuasive, however, as legal analyses of
an important constitutional issue facing administrative agencies.
The particular limits of their approaches are reflected in the solutions they propose.
A.
In addition to his catalogue of power abuses under current "derangements,"3 0 Lowi apparently would limit all executive discretion
and restrict demands for relief "to a specific remedy for a specified
act of damage." 3' He challenges all delegations, even where Congress has made significant efforts to legislate narrowly, and blames
lobbying (colorfully called "corridoring") on excessive grants of
2
discretion.3
The answers to Lowi's proposals do not seem especially difficult.3 3 The elimination of all executive discretion is neither consti28. Aranson, Gellhorn & Robinson, supra note 18, at 37-55.
29. Id.; Lowi, supra note 8, at 297; Stewart, supra note 8, at 342-43.
30. Lowi, supra note 8, at 297-98 (describing result of broad discretionary power in executive branch as "deranging" constitutional relationships between branches of government).
31. Id. at 301. Lowi argues that one cause of excessive regulation was legislation ordaining broad policy goals. Id.
32. Id. at 307. Lowi defines "corridoring" as the administrative equivalent to legislative
lobbying through which interest group politics are shifted "from the lobbies of Congress to
the corridors of agencies." Id.
33. Lowi proposes that: "The antidote to government by patronage is not termination of
the policies or the agencies but reduction of the discretion." Id. at 322 (emphasis added).
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tutionally required nor practically desirable.3 4 Article II of the
Constitution recognizes the need for some discretion by vesting
"executive Power ... in a President.""5 The exercise of executive
power involves finding and applying facts, interpreting the law, and
applying it to unanticipated situations or new developments. 3 6 Indeed, Lowi once recognized this point when he urged "rule of law
by administrative formality"-namely, that the executive engage in
"early and frequent administrative rule making." 3 7 There would be
no need for administrative rulemaking if agencies had no discretion.
Furthermore, the elimination of discretion would not remove the
vices that Lowi vividly deplores. For example, the corridoring that
he connects to excessive discretion is perhaps most evident when
Congress passes specific laws where executive choice is narrowly
confined as in defense contracting or tax codes. Corridoring may be
a significant problem, 3 8 but Lowi has not shown that the degree and
intensity of its presence is somehow related to executive discretion.
B.
The limitation of Stewart's reconstitutive strategy lies in a different direction. He seems somewhat ambivalent about the constitutionality of broad delegations of authority to the agencies. They do
not necessarily seem all bad and, in any case, there are no "judicially
manageable and defensible criteria to distinguish permissible from
impermissible delegations." 3 9 He therefore proposes a complex
system of national policy direction with local initiative. 40 For exam34. See Sunshine Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) (holding that congressional delegation of authority to administrative agencies is necessary for effective exertion of
legislative power). See also I K. DAVIS, ADMINISTRATIVE LAw TREATISE § 2.4, at 69 (2d ed.
1978) (citing example of delegation of legislative authority to executive branch by first Congress as indication of constitutional validity of delegation of powers). Professor Lowi concedes that delegation of power is required by the theory and practice of a representative
government. He describes an absolutist position opposing delegation as "utter foolishness."
Lowi, supra note 8,at 295-96.
35. U.S. CONsT. art. II, § 1. See generally I K. DAVIS, ADMINISTRATIVE LAW TREATISE
§§ 2.2-2.6 (2d ed. 1978) (describing three branches of government as mixture of three types
of power-legislative, executive, and judicial).
36. See Administrative Procedure Act, 5 U.S.C. § 551(4) (1982) (defining "rule" as
agency statement that implements, interprets, or prescribes law or policy).
37. T. Lowi, THE END OF LIBERALISM 302-03 (2d ed. 1979). Lowi identifies agency
rulemaking as a legislative act but acknowledges that it is justified under both the enabling
statute for the agency and the general congressional intent of the Administrative Procedure
Act. Id. at 303.
38. For a discussion of corridoring as a developing phenomenon, see Eisner, Regulatory
Negotiations:A Real World Experience, 31 FED. B. NEWS &J. 371 (1984) (describing development
of procedures designed to encourage citizen and interest group participation in administrative process). Lowi identifies these procedures as a significant force in shifting interest group
pressure from Congress to the agencies. Lowi, supra note 8, at 306-07.
39. Stewart, supra note 8, at 324.
40. Id. at 335-36.
1987]
FIRST PRINCIPLES
ple, occupational risks would no longer be regulated by directives
from a centralized Occupational Safety and Health Administration
(OSHA). The labor laws would be rewritten to promote the broad
policy goal-unionization. Regulations would require disclosure of
information on occupational hazards, the hiring of safety professionals, and making safety a mandatory subject of bargaining for
41
employment contracts.
Whether this approach would result in less discretion, less burdensome regulation, greater public acceptance, and wiser safety
regulation seems doubtful. Under the guise of local control and
supposed reliance on market forces, Stewart would extend regulation and, I suspect, increase administrative discretion and arbitrariness. 42 His response does not address the underlying concern of
the use of the legislative process to create private goods. 43 More
importantly, even if his political science solution was desirable, it
does not include any demonstration why Congress, agencies, or
courts would adopt this approach."4 To quote his rejoinder to those
urging that the legislature enact more specific legislation, "inview
of the limited legislative capacity or incentive for specific delegation,
exhortation appears hardly to be sufficient." 45 Where is the likely
support for this reconstitutive agenda?
III.
The irony of this analysis, however, is that while I agree with
Lowi's conclusions and disagree with Stewart's broad ranging policy
recommendations, I find that Lowi's wide-ranging attack on all executive discretion overstates and Stewart's approach understates the
legal case against broad delegations. The function of the basic provisions in the first three articles in the Constitution is to keep the
legislature and the executive within specific bounds. 46 The problem
is that neither is given an incentive to do so. Indeed, this lack of
41. Id. at 339-40.
42. Id. at 338-39.
43. "Private goods" are defined as goods owned by individuals or businesses-that is,
goods not owned by the government. D. MOFFAT, ECONOMIC DICTONARY 239 (1976).
44. Stewart acknowledges that Congress and the regulatory agencies have reasons to
resist his reconstitutive approach. Stewart, supra note 8, at 342-43 (noting that Congress,
regulatory agencies, regulated firms, and special interest groups rely heavily on prescriptive
legislation).
45. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REv. 1669, 1694
n.120 (1975).
46. See United States v. Brown, 381 U.S. 437, 443 (1964) (stating that separation of powers was designed as bulwark against tyranny); Meriwether v. Garrett, 102 U.S. 472, 515 (1880)
(stating that strict confinement ofeach branch of government within its own sphere was intent
of founding fathers).
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incentive is the primary justification offered for judicial review of the
47
constitutionality of the exercise of legislative and executive power.
The difficulty with urging a revival of the nondelegation doctrine
-as I would continue to urge-is that its short-lived application in
the 1930s proved tumultuous and inconclusive. 48 The doctrine's
uncertain past does suggest that any revival of the doctrine occur
slowly and cautiously. 4 9 First, the nondelegation doctrine should be
applied only as a second, perhaps last, resort. Initial consideration
should be given to reading the statutory authority of the agencies
and the President more narrowly if the language permits. 50 Second,
the nondelegation doctrine could be limited, at least initially, to excessive delegations that are clearly used to create private goods.
This would at least confine the judicial cure to the worst cases of this
disease, namely the misuse of administrative authority for obvious
nonpublic (and patently doubtful public) purposes.
There is, it seems to me, no reasonable justification for regulatory
schemes established under broad delegations, particularly where
their primary result is to produce private goods. The latter are well
illustrated by the regulatory regimes upheld in Williamson v. Lee Optical Co. 5 1 or in North Dakota State Board of Pharmacy v. Snyder's Drug
47. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803) (establishing concept of
judicial review as limitation on legislative authority). See also Attanasio, Everyman s ConstitutionalLaw: A Theory of the PowerofJudicialReview, 72 GEO. LJ. 1665, 1669-72 (1984) (discussing
arguments in favor ofjudicial review). See generally Ackerman, The Storr'sLectures: Discoveringthe
Constitution, 93 YALE LJ. 1013 (1984) (discussingjudicial review as democratic process reflecting views of American people).
48. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (holding that delegation of legislative power seemingly without limitation was unconstitutional);
Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) (applying nondelegation doctrine to overturn
congressional enactment); Aranson, Gellhorn & Robinson, supra note 18, at 9 (discussing history of nondelegation doctrine).
49. See Eichbaum & Babcock, A Question of Delegation:An Inquiry Into the Success with Which
Congress May Provide Detailed Guidance for Executive Agency Action, 86 DICK. L. REv. 615, 616
(1982) (discussing recent trend toward requiring more precise standards for exercise of delegated power).
50. See Epstein, Toward a Revitalization of the Contract Clause, 51 U. CHI. L. REv. 703, 70405 (1984) (suggesting need for judicial action to interpret contract clause narrowly limiting
state intervention in economic activities); Macey, supra note 3, at 227 (suggesting that traditional approach of strict statutory interpretation benefits public interest).
Some courts have used the "clear statement" doctrine to limit agency discretion. See, e.g.,
Kent v. Dulles, 357 U.S. 116, 129 (1958) (narrowly construing passport requirement for foreign travel); Home Box Office v. FCC, 567 F.2d 9, 27-34 (D.C. Cir.) (requiring narrow construction of agency's authority to regulate cable-casting because of infringement on
constitutionally protected free speech), cert. denied, 434 U.S. 829 (1977). See also S. BREER &
R. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 295 (2d ed. 1985) (listing two
elements of clear statement doctrine as identification of interest whose infringement by administrative agency must be explicitly authorized and determination whether such explicit
authorization was granted in present case). The difficulty, of course, is that courts have traditionally construed agency regulatory authority broadly. Stewart, supra note 45, at 1692, n.I 11
(citing cases).
51.
348 U.S. 483 (1955).
19871
FIRST PRINCIPLES
353
Stores, Inc.5 2 In both, special business groups-optometrists, ophthalmologists, and pharmacists-obtained protection from competition through state licensure. Alleged health or safety justifications
could not withstand serious scrutiny; the claims of professionalism
are now regularly rejected as spurious arguments in antitrust law
and first amendment jurisprudence. 53 Why the nondelegation doctrine should continue to be read in so cramped a fashion while other
statutory and constitutional rules have grown, as our understanding
of legislative practices has grown, is not explained.
Although this proposal for a revival of the nondelegation doctrine
has much to recommend it-it is, for example, more likely to
achieve the policy goals favored by both Lowi and Stewart-I am
not confident of its success. The taint left by the sporadic application of the nondelegation doctrine in the mid-1930s to overturn
some excesses of the New Deal is still strong. Worries continue that
revival of the doctrine could lead to uncontrolled judicial activism
and unpredictable policy results. Moreover, difficult definitional issues remain. 54 Nonetheless, a limited revival of the nondelegation
doctrine seems far preferable to the even more questionable alternatives offered by Lowi and Stewart.
Critics may suggest that this proposed limited revival of the
nondelegation doctrine is antiregulation in effect and motivated by a
normative conservative political agenda. We all have our policy
goals and I admit that mine do not generally favor more government intervention in the market. Reading my comment in this fashion, however, misconceives its argument and objective. The target
of my concern is the use of delegated legislative power by administrative agencies to create private goods. This is, I believe, contrary
to the constitutional design as well as to the public interest. I
would, therefore, gladly accept a reinvigorated yet limited nondelegation doctrine even if it resulted in more rather than less legislation-so long as the legislation that was upheld served primarily
public purposes and satisfied constitutional requirements that Congress exercise its lawmaking power.
52. 414 U.S. 156 (1973).
53. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1070 (1978) (observing that minimum
rationality requirement was employed in William v. Lee Optical Co. to justify state's legitimate
interest rather than employing strict scrutiny).
54. See Mashaw, ConstitutionalDeregulation: Notes Toward a Public, Public Law, 54 TUL. L.
REV. 849, 868 (1980) (noting difficulty in distinguishing exact boundaries between public and
private goods).