- The Washington Times - Tuesday, November 7, 2000

What sweet irony. On this very day we go to the polls to elect a new Congress, the Supreme Court is to hear argument in a case that may determine how much of Congress' legislative power may be turned over to unelected bureaucrats.
The case is Browner vs. American Trucking Associations Inc., and the question is whether the Clean Air Act's delegation of authority to the Environmental Protection Agency to promulgate air quality standards is itself so standardless as to be unconstitutional under the nondelegation doctrine.
Because Congress passes so many statutes containing vague language delegating authority to the federal agencies that regulate so many aspects of our daily activities and those of American business, the court's decision in the Browner case will have a far-reaching impact.
Article I vests "all legislative powers" in Congress. The purpose of the nondelegation doctrine is to effectuate the separation-of-powers principles at the very heart of the Constitution by preventing Congress from handing off its lawmaking power in a wholesale fashion. The Founders wanted to ensure that, in our democratic republic, the fundamental social and economic policy choices are made by Congress, the branch most responsive to the popular will.
In 1928, in the leading case of J.W. Hampton Jr. & Co. vs. United States, the Supreme Court articulated a test that, at least in theory, still stands today: Congress must set forth "intelligible principles" when it delegates authority to the Executive Branch. The court, however, has not held a statute unconstitutional under the nondelegation doctrine since 1935 when it struck down New Deal legislation giving President Roosevelt nearly unbridled discretion to establish trade and industrial policies.
Now, 65 years later, comes Browner. The Clean Air Act directs EPA to set ozone and particulate matter standards at a level "requisite to protect the public health" with an "adequate margin of safety." In reviewing EPA's air quality regulation, the court of appeals held that the agency had construed the statutory provisions "so loosely as to render them unconstitutional delegations of legislative power." The court couldn't discern why EPA had picked .08 ppm as the permissible ozone level rather than .07 ppm or some lower level. In a nice turn of phrase, it said EPA appeared "free to pick any point between zero and a hair below the concentrations yielding London's Killer fog."
So the court held the new air standards unlawful because "EPA lacks … any determinate criterion for drawing lines." But rather than invalidate the statute itself as a standardless delegation of authority, it remanded the case to the agency to give EPA an opportunity "to extract a determinate standard on its own."
Presumably because it has been so long since the Supreme Court has employed the nondelegation doctrine to strike down a statute, the lower court may have felt more comfortable invoking a "soft" form of the nondelegation doctrine. Under this approach, the courts give the agencies a chance to provide a narrowing construction for statutes that otherwise might be considered impermissibly indeterminate.
Application of the "soft" form of the nondelegation doctrine is better than allowing agencies simply to exercise completely unbounded discretion without adherence to any constraining principles. But this approach does not serve the nondelegation doctrine's key function of ensuring that the fundamental policy choices are made by our elected representatives.
No one seriously argues that the Constitution requires that Congress itself, rather than an administrative agency it creates, is required to set the actual air quality standards. Indeed, there is a respectable argument that in this very instance Congress gave sufficient guidance to EPA when it included the "requisite to protect the public health" with an "adequate margin of safety" language in the statute.
Moreover, not many people seriously argue that the agencies should not play an important role in today's society, with their activities ranging from the promulgation of health and safety standards to policing the securities markets to approving new drugs. But is it too much to ask as the Founders did that Congress be required at least to lay down fundamental policy direction for the agencies?
Too often this is not the case. Take, for example, the Communications Act. In more than 50 instances, the statute grants the Federal Communications Commission authority to act "in the public interest." It's difficult to imagine a more indeterminate grant than that. Your conception of the "public interest" may be much different than mine.
Note what happens when Congress grants such standardless authority to agency mandarins. In the case of the FCC, one of its many tasks is to decide whether mergers between companies holding FCC licenses are in the "public interest." In practice, the indeterminacy of the standard has meant that the agency has been able to wield great power by extracting many so-called "voluntary" concessions, often completely unrelated to the supposed concerns prompted by the merger itself, as the price of securing Commission approval for mergers.
In 1940, the Supreme Court rejected a nondelegation challenge to the public interest standard. Justice Frankfurter, one of the architects of the New Deal, curiously declared that the public interest standard "is as concrete as the complicated factors for judgment in such a field of delegated authority permit." Come again. What he really meant was revealed later in the opinion when he proclaimed: "[O]ur new social and industrial conditions cannot be practically accomplished by the old and simple procedure of legislatures and courts as in the last generation."
The Founders, of course, envisioned vital roles for the legislature and the courts in maintaining the constitutional balance under our separation-of-powers regime. No doubt Congress is often perfectly happy to hand off authority to agencies with such vague direction as to act "in the public interest." This way it can take credit if it likes what the bureaucrats do and skewer them if it doesn't.
But the Constitution assigns the responsibility for making laws to all those would-be legislators now seeking our votes. So even if the court finds that Congress didn't cross the nondelegation line in Browner, it should find the right words to put Congress on notice that such lines do exist and, if only in rare cases, may be enforced by the judiciary.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation.

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