* Executive Editor, Boston College Environmental Affairs Law Review, 2000–01. I wish to thank Professor Zyg Plater for his patience in assisting me with this Note.
1 See Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
2 See J.W. Hampton, 276 U.S. at 409.
3 See Yakus v. United States, 321 U.S. 414, 426 (1944).
4 See Mistretta v. United States, 488 U.S. 361, 372 (1989).
5 See National Cable Television Ass’n, Inc. v. United States, 415 U.S. 352, 353 (1974).
6 See American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999), opinion modified on reh’g, American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (per curiam), rev’d sub nom. Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903 (2001).
7 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 912 (2001).
8 See id.
9 See id. at 913. The Court explained:
[i]n the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.”
Id. (citing Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)).
10 See 5 U.S.C.  701(a)(2).
11 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
12 See id.
13 See Dalton v. Specter, 511 U.S. 462, 477 (1994); Webster v. Doe, 486 U.S. 592, 601 (1988); Heckler v. Chaney, 470 U.S. 821, 838 (1985).
14 See J.W. Hampton, 276 U.S. at 409.
15 See Overton Park, 401 U.S. at 410.
16 See infra Section III(A).
17 This note discusses the nondelegation doctrine at the federal level. For a discussion of nondelegation at the state level, see 1 Frank E. Cooper, State Administrative Law (1965); 1 Kenneth Culp Davis, Administrative Law Treatise  2.07 etc. (1958); Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 Vand. L. Rev. 1167 (1999). All three authors explain that the nondelegation doctrine is significantly stricter at the state level than it is at the federal level. See Cooper, supra, at 31; Davis, supra, at 101; Rossi, supra, at 1167.
18 This note does not address Congressional delegation of adjudicatory power.
19 See David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 Cardozo L. Rev. 731, 735–36 (1999).
20 See U.S. Const. art. I,  1.
21 See Marci A. Hamilton, Representation and Nondemocracy: Back to Basics, 20 Cardozo L. Rev. 807, 807 (1999).
22 U.S. Const. art. I,  1.
23 See Hamilton, supra note 21, at 807.
24 See Mistretta v. United States, 488 U.S. 361, 371 (1989).
25 See The Brig Aurora v. United States, 11 U.S. 382, 383 (1813). The act mandated that:
the President of the United States . . . is hereby authorized, in case either France or Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation; after which the trade suspended by this act . . . may be renewed.
Id. at 383 (quoting  11 of the Non-Intercourse Act of Mar. 1, 1809).
26 See id. at 388.
27 See id. at 383.
28 See id. The act delegated power to the President. See id.
29 See id.
30 See Brig Aurora, 11 U.S. at 383.
31 See id. at 388.
32 See United States v. Grimaud, 220 U.S. 506, 517 (1911); Field v. Clark, 143 U.S. 649, 692 (1892).
33 See Grimaud, 220 U.S. at 515; Field, 143 U.S. at 691–92.
34 See Grimaud, 220 U.S. at 507; Field, 143 U.S. at 691–92.
35 See Grimaud, 220 U.S. at 517; Field, 143 U.S. at 692.
36 See Field, 143 U.S. at 691–92.
37 See id.
38 Compare id. with Aurora, 11 U.S. at 383.
39 See Grimaud, 220 U.S. at 517.
40 See id.
41 See id.
42 See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 401, 409 (1928).
43 See id.
44 See id. at 401.
45 See id. at 409.
46 See id.
47 See J.W. Hampton, 276 U.S. at 409. The statute required the President to consult with a congressionally appointed Tariff Commission for advice prior to the exercise of his legislative power. See id. at 409.
48 See id.
49 See Breyer et al., Administrative Law and Regulatory Policy 40 (1999).
50 See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936); A.L.A. Schechter Poultry Co. v. United States, 295 U.S. 495, 521 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935).
51 See Carter Coal, 298 U.S. at 311; Schechter Poultry, 295 U.S. at 541–42; Panama Refining, 293 U.S. at 430.
52 See Panama Refining, 293 U.S. at 436 (Cardozo, J., dissenting). “Hot oil” refers to “oil produced or transported in excess of a statutory quota.” Id.
53 See id. at 430.
54 See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
55 See Panama Refining, 293 U.S. at 430.
56 See id. at 414–20. The Court explained that its nondelegation inquiry required an analysis of the statute “to see whether the Congress has declared a policy . . . set up a standard . . . [or] required any finding by the President in the exercise of the authority.” Id. at 415.
57 See id. at 415. The Court concluded that section 9(c) failed to provide substantive or procedural guidelines that would have served to limit the President’s authority. See id. For instance, the Court noted that Congress did not require the President to make findings before prohibiting the interstate transport of “hot oil.” See id.
58 See id. at 416. The Court turned first to section 9 to examine the “context” of subsection (c), and determined that although subsections (a) and (b) did indeed provide limiting standards, those subsections were unrelated to the subject of section 9(c). See id. The Court looked next to other sections of NIRA, but concluded that the general policies articulated failed to determine the conditions under which the President could exercise the delegated power. See id. at 417. But see id. at 434–36 (Cardozo, J., dissenting) (arguing that policies articulated throughout NIRA established standards sufficiently clear so as to govern the President’s decision making).
59 See id. at 414–20.
60 See Panama Refining, 293 U.S. at 414–20.
61 See id. at 420.
62 Id. at 420–21.
63 See id.
64 See A.L.A. Schechter Poultry Co. v. United States, 295 U.S. 495, 529–32 (1935).
65 See id. at 530.
66 See id. at 529–32. The Court explained:
[w]e look to the statute to see whether Congress has overstepped these [constitutional] limitations—whether Congress in authorizing ‘codes of fair competition’ has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others.
Id. at 530.
67 See id. at 533–34, 539–40 (citing Federal Radio Comm’n v. Nelson Bros. Bond & Mtg. Co., 289 U.S. 266 (1933); Federal Trade Comm’n v. Raladam Co., 283 U.S. 643 (1931); Interstate Commerce Comm’n v. Louisville & Nashville R.R. Co., 227 U.S. 88 (1913)). In Nelson Brothers, the Court upheld a delegation to issue licenses “‘as public convenience, interest or necessity requires’” because Congress had required the Commission to conduct hearings. See id. at 540 (quoting Federal Radio Comm’n, 289 U.S. at 285). In Raladam, the Court upheld a delegation to prevent “‘unfair methods of competition’” because Congress had required extensive procedural safeguards, including notice, findings of fact, and hearings. See id. at 533–34 (quoting Raladam, 283 U.S. at 648–54). In Louisville & Nashville Railroad Co., the Court upheld a delegation to regulate “‘in the public interest’” because Congress had required evidence-based findings. See id. at 539–40 (quoting Louisville & Nashville Railroad Co., 227 U.S. at 91–94).
68 See id. at 542.
69 See Schechter Poultry, 295 U.S. at 529–42.
70 See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936).
71 See id. Because the plaintiffs challenged the delegation as soon as the legislation became effective, the delegated authority had not yet been exercised. See id.
72 See id. Under the Bituminous Coal Conservation Act, Congress had delegated rate-setting power not to another governmental entity, but to private citizens who had a financial interest in the rates set. See id. The Court referred to this power as “legislative delegation in its most obnoxious form.” See id.
73 See id. at 310–11; Schechter Poultry, 295 U.S. at 542; Panama Refining Co. v. Ryan, 293 U.S. 388, 415 (1935).
74 See Carter Coal, 298 U.S. 238, 311 (1936); Schechter Poultry, 295 U.S. at 542; Panama Refining, 293 U.S. at 415.
75 See Schechter Poultry, 295 U.S. at 531–33; Panama Refining, 293 U.S. at 420–21.
76 See Schechter Poultry, 295 U.S. at 531–33; Panama Refining, 293 U.S. at 420–21.
77 See Yakus v. United States, 321 U.S. 414, 426 (1944).
78 See id.
79 Id. (emphasis added).
80 Compare id. with J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
81 See Yakus, 321 U.S. at 427.
82 See id. at 422–23 (explaining that statute in question was “a war emergency measure”).
83 Kevin B. Covington, Federal Appellate Court Revives the Nondelegation Doctrine in Environmental Case, 73-OCT Fla. B.J. 81, 81. Covington explains that, “[a] fundamental prerequisite for the growth of the federal government in the 20th century has been the ability of Congress to delegate broad powers and duties to agencies.” Id.
84 See generally Schoenbrod, supra note 19; Skelly Wright, Review-Beyond Discretionary Justice, 81 Yale L.J. 575 (1972).
85 See Schoenbrod, supra note 19, at 732; Wright, supra note 84, at 582.
86 See Wright, supra note 84, at 582.
87 See Schoenbrod, supra note 19, at 734. Rejecting the idea that delegation leads to better rule making, Schoenbrod maintains that, “[f]rom its inception, the core purpose of delegation was to undercut democratic accountability.” Id.
88 See Nadine Strossen, Delegation as a Danger to Liberty, 20 Cardozo L. Rev. 861, 864–65 (1999). A few of the ways Strossen believes delegation threatens liberty are: the tendency for agencies to heed the interests of a narrow segment of society, the consolidation of legislative and adjudicatory roles within one agency, and the high level of deference afforded to agencies under judicial review. See id.
89 See Dan M. Kahan, Democracy Schmemocracy, 20 Cardozo L. Rev. 795, 795 (1999).
90 See id. at 796. For example, Kahan explains that the “pluralist” concept of democracy values legislation that reflects the electorate’s preferences, which conflicts with the “civic republican” view that values legislation that results from contemplation of the “common good.” See id.
91 See Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775, 775 (1999).
92 See id.
93 See Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607, 675 (1980) (Rehnquist, J., concurring). But see Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 912–14 (2001) (joining in opinion upholding delegation to EPA to promulgate air quality regulations “requisite for human health”).
94 See id. at 672 (Rehnquist, J., concurring).
95 See id. at 686–87 (Rehnquist, J., concurring).
96 See id. at 675 (Rehnquist, J., concurring).
97 See id. at 613.
98 See Industrial Union, 448 U.S. at 642–45.
99 See id. at 662.
100 See id. at 673 (Rehnquist, J., concurring).
101 See American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 544–48 (1981) (Rehnquist, J., dissenting).
102 See id. at 543 (Rehnquist, J., dissenting).
103 See id. at 548.
104 See id.
105 See generally id.
106 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 912–14 (2001); Loving v. United States, 517 U.S. 748, 758 (1996); Mistretta v. United States, 488 U.S. 361, 372 (1989).
107 See American Trucking, 121 S.Ct. at 912–14; Loving, 517 U.S. at 771; Mistretta, 488 U.S. at 374.
108 See National Cable Television Ass’n, Inc. v. United States, 415 U.S. 336, 342 (1974).
109 See id. at 337. The provision at issue states that, “the head of each Federal agency is authorized by regulation . . . to prescribe therefor . . . such fee, charge, or price, if any, as he shall determine . . . to be fair and equitable.” Id. (quoting 31 U.S.C.  483(a)).
110 See generally id. The Court explained that, “[t]axation is a legislative function, and Congress . . . is the sole organ for levying taxes.” Id. at 340.
111 See id. at 342.
112 Id.
113 See National Cable Television, 415 U.S. at 341.
114 See id.
115 See Mistretta, 488 U.S. at 372.
116 See id. at 367.
117 See id. at 374. The Court explained:
Congress charged the Commission with three goals: to “assure the meeting of the purposes of sentencing as set forth” in the Act; to “provide certainty and fairness in meeting the purposes of sentencing, avoid unwarranted sentencing disparities among defendants with similar records . . . while maintaining sufficient flexibility to permit individualized sentences,” where appropriate; and to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.”
Id. (quoting 28 U.S.C.  991(b)(1)).
118 See id. The Court explained:
Congress further specified four “purposes” of sentencing that the Commission must pursue in carrying out its mandate: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed . . . correctional treatment.”
Id. (quoting 18 U.S.C.  3553(a)(2)).
119 See Mistretta, 488 U.S. at 376 n.10.
120 Compare id. at 374–75, with American Textile Mfg., Inc. v. Donovan, 452 U.S. 490, 508 (1981).
121 See Mistretta, 488 U.S. at 372.
122 Id.
123 See id. at 371. The Court explained that, “[t]he nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Id.
124 See id. at 372.
125 See National Cable Television Ass’n, Inc., 415 U.S. 352, 353 (1974) (calling nondelegation doctrine “moribund”); Ernest Gellhorn, Returning to First Principles, 36 Am. U. L. Rev. 345, 345 (1987); David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1226 (1986).
126 See Cass Sunstein, The Court’s Perilous Right Turn, NY Times, June 2, 1999 (calling the American Trucking decision a “remarkable departure from precedent”); Air Quality Standards: Court’s Decision on Ozone, PM Rules Called “Extreme, Illogical” by Browner, 30 ENV’T REP. 158 (May 28, 1999) (reporting that EPA Administrator Carol Browner called the decision “extreme, illogical and bizarre”).
127 See American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999), opinion modified on reh’g, American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (per curiam), rev’d sub nom. Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903 (2001).
128 See id. For a brief discussion of the NAAQS, see Craig N. Oren, Run Over by American Trucking Part I: Can EPA Revive Its Air Quality Standards?, 29 ELR 10653, 10654–55, 10660–62 (1999).
129 See id. at 1057 (Tatel, J., dissenting).
130 See id. at 1034. The CAA directs EPA to set standards at the level “requisite to protect the public health” with an “adequate margin of safety.” See id. (quoting  109(b)(1) of the CAA).
131 Id.
132 See American Trucking, 175 F.3d at 1034. The court explained that, “EPA appears to have articulated no ‘intelligible principle’ to channel its application of these [public health] factors; nor is one apparent from the statute.” Id.
133 See id. at 1038, 1057.
134 See generally id. (Tatel, J., dissenting); Oren, supra note 128; Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303 (1999); Recent Cases, 113 HARV. L. REV. 1051 (2000).
135 See American Trucking, 175 F.3d at 1038, 1057 (Tatel, J., dissenting); Oren, supra note 128, at 10656; Sunstein, supra note 134, at 310.
136 See American Trucking, 175 F.3d at 1057 (Tatel, J., dissenting).
137 Id.
138 See Oren, supra note 128, at 10655–56 (stating that “this case does not seem a particularly outstanding example of a vague delegation”); Recent Cases, supra note 134, at 1054 (stating that “[t]he language of the CAA is considerably narrower than that accepted by the Supreme Court”).
139 See American Trucking, 175 F.3d at 1038.
140 See Sunstein, supra note 134, at 310, 348–49; Recent Cases, supra note 134, at 1053–54.
141 See Recent Cases, supra note 134, at 1054. The author states that, “if the doctrine is meant to limit Congress’s ability to delegate its legislative authority, it is difficult to see how the recipient of the delegation, rather than Congress itself, can remedy the problem.” Id.
142 See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
143 Gary Marchant, The American Trucking Associations Decision: Over-Turning the National Ambient Air Quality Standards for Ozone and Particulate Matter (visited Feb. 17, 2000) <http://merlin.law.mercer.edu/elaw/gmarchant.htm#trans>.
144 See id.
145 See American Trucking, 175 F.3d at 1059 (Tatel, J., dissenting); Oren, supra note 128, at 10658; Recent Cases, supra note 134, at 1055.
146 See American Trucking, 175 F.3d at 1034–39; see also Oren, supra note 128, at 10658.
147 See American Trucking, 175 F.3d at 1034–39.
148 See id. at 1033–34.
149 Id. at 1061 (Tatel, J., dissenting) (citation omitted). See also Recent Cases, supra note 134, at 1055 (noting that “the American Trucking version of the nondelegation doctrine is . . . an inappropriate tool for dealing with agency arbitrariness”); Oren, supra note 128, at 10658 (noting that “American Trucking can readily be explained as deciding that the Agency was arbitrary and capricious”).
150 See American Trucking, 175 F.3d at 1059–61 (Tatel, J., dissenting).
151 See American Trucking, 195 F.3d at 6.
152 See id. at 6–8.
153 See id. at 8.
154 Id.
155 See id.
156 See American Trucking, 195 F.3d at 8.
157 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 914 (2001). The Court summarized the lower court holding in this way: “The court hence found that the EPA’s interpretation (but not the statute itself) violated the nondelegation doctrine.” Id. at 912.
158 See id.
159 See id. Citing the nondelegation (i.e., intelligible principle) test as originally articulated in J.W. Hampton, the Court explained that it has
never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. . . . The very choice of which portion of the power to exercise—that is to say, the prescription of the standard that Congress had omitted—would itself be an exercise of the forbidden legislative authority.
Id.
160 See id.
161 See id. The Court explained, “[w]hether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the answer.” Id.
162 See American Trucking, 121 S.Ct. at 913. As examples of previously-upheld delegations that were even broader than the delegation in American Trucking, the Court cited: American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946); Yakus v. United States, 321 U.S. 414, 420 (1944); National Broadcasting Co. v. United States, 319 U.S. 190, 225–26 (1943); New York Central Securities Corp. v. United States, 287 U.S. 12, 24–25 (1932). Id.
163 See id.
164 See id. at 919. Although none of the Justices dissented in this case, Justices Thomas, Stevens, and Breyer offered concurring opinions. See id. at 919–24. Justice Thomas agreed that the delegation in this case met the intelligible principle test, but maintained that the intelligible principle test itself may fail to prevent an unconstitutional delegation of legislative authority. See id. at 919–20. Justice Stevens (joined by Justice Souter) also agreed with the Court’s upholding of the delegation, but would prefer to “admit” that EPA’s rulemaking authority is a form of legislative power, rather than simply “pretend, as the Court does, that the authority delegated to the EPA is somehow not ‘legislative power’.” Id. at 920. Lastly, Justice Breyer joined in the Court’s nondelegation holding, and concurred with its refusal to read a cost-benefit analysis into the “requisite for human health standard.” See id. at 921–24.
165 See supra notes 93–105 and accompanying text. The Court itself referenced the Chief Justice’s previous calls for invocation of the nondelegation doctrine, explaining that—contrary to respondents’ argument in favor of reading a cost-benefit analysis into the CAA—it was the lack of a cost-benefit analysis that kept the delegation in American Trucking constitutionally intelligble. See American Trucking, 121 S.Ct. at 912–13.
166 See American Trucking, 121 S.Ct. at 910–11.
167 See id. Indeed, when pressed during oral argument, respondent conceded the delegation issue, focusing instead on the assertion that the CAA requires EPA to consider costs whem promulgating NAAQS.
168 Id. at 911.
169 See id. In emphasizing the importance of a contextualized reading of section 109(b), the Court explained that, “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Id. at 909–10.
170 See supra note 165. At oral argument, Justice Ginsberg made the point succinctly when she reasoned that a cost-benefit requirement would only further confuse (rather than clarify) the NAAQS-setting process, and would simply provide respondents and other EPA opponents with an additional basis for litigation in the future.
171 For a discussion of the availability of judicial review of agency inaction, see Brandon L. Pham, Comment, The Federal Endangered Species Act: Is Judicial Review Available to Safeguard Against Agency Decisions Not to Enforce?, 13 UCLA J. Envtl. L. & Pol’y 329 (1994/1995).
172 See Richard J. Pierce et al., Administrative Law and Process 128 (3d ed. 1999).
173 See 5 U.S.C.  701(a)(1) (providing that judicial review is permitted unless “statutes preclude judicial review”).
174 See 5 U.S.C.  701(a)(2) (providing that judicial review is permitted unless “agency action is committed to agency discretion by law”).
175 See Abbott Lab. v. Gardner, 387 U.S. 136, 140 (1967). The Court explained that “[t]he Administrative Procedure Act embodies the basic presumption of judicial review to one ‘suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute’.” Id.
176 See Pierce et al., supra note 155, at 132–33.
177 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). For a pre-Overton Park discussion of “committed to agency discretion,” see Harvey Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion, 82 Harv. L. Rev. 367 (1968).
178 See Overton Park, 401 U.S. at 410.
179 See id. at 411.
180 See id. at 413.
181 See id. at 411 (quoting  4(f) of Department of Transportation Act and  138 of Federal-Aid Highway Act, which prohibited Secretary from approving “any program or project” involving use of public parkland “unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park”).
182 See id. at 410 (quoting legislative history of  701(a)(2)).
183 See Kenneth Culp Davis, “No Law to Apply, 25 San Diego L. Rev. 1, 1 (1988); Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689, 704–05 (1990).
184 See Davis, supra note 183, at 2; Levin, supra note 183, at 707.
185 See Davis, supra note 166, at 1 (quoting the legislative history, “‘[i]f . . . statutes are drawn in such broad terms that in a given case there is no law to apply, courts have no statutory question to review’”). Professor Davis states emphatically: “[t]he committee did not say and did not imply that a court should deny review when it has no law to apply.” Id.
186 See id. at 2. Professor Davis explains that, “Congress stated quite clearly in the APA that it intended courts to review administrative action for abuse of discretion, and an abuse of discretion may or may not involve law.” Id.
187 See id.
188 Levin, supra note 183, at 705.
189 See id. at 705, 705 n.74.
190 See id. at 705–06.
191 See id.
192 See id. at 705 n.73. Professor Levin explains that, “only three months elapsed from the day the Supreme Court granted review until the day when the decision came down.” Id.
193 See generally Langevin v. Chenago Court, Inc., 447 F.2d 296 (2d Cir. 1971); Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970).
194 See Dalton v. Specter, 511 U.S. 462, 477 (1994); Webster v. Doe, 486 U.S. 592, 601 (1988); Heckler v. Chaney, 470 U.S. 821, 838 (1985). For an in-depth analysis of Overton Park, Chaney, and Webster, see generally Levin, supra note 166.
195 See Chaney, 470 U.S. at 837–38.
196 See id. at 823–34.
197 See id. at 824. Under 21 U.S.C.  355, the FDA is required to approve “new drugs” as “safe and effective” prior to interstate distribution. See id.
198 See id. at 823–24.
199 See id. at 830–31.
200 See Chaney, 470 U.S. at 838.
201 See id. at 837–38.
202 See Webster, 486 U.S. at 595.
203 See id. at 594 (quoting  102(c) of the National Security Act of 1947, as amended). Section 102(c) provides that, “the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States.” Id.
204 See id. at 605. Significantly, however, the Court explained that the “no law to apply” exception does not preclude judicial review of Constitutional claims, but rather only of claims based on the APA. See id.
205 See id. at 601.
206 See id.
207 See Levin, supra note 183, at 730–31.
208 See id.
209 See Dalton v. Specter, 511 U.S. 462, 464–65 (1994).
210 See id. at 465.
211 See id. at 464 (quoting  2901(b) of the Defense Base Closure and Realignment Act of 1990).
212 See id. at 477.
213 See id. at 473 n.5.
214 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. at 912; Webster v. Doe, 470 U.S. 592, 601 (1988).
215 See Mistretta, 488 U.S. at 372.
216 See id.
217 See Levin, supra note 183, at 694. Professor Levin describes the “committed to agency discretion” exception as a “threshold defense” such that “[w]hen the government prevails on this defense, a particular administrative action or finding receives no scrutiny—not even deferential scrutiny—on judicial review.” Id.
218 See supra Section I(B).
219 See supra Section I(B).
220 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
221 See Overton Park, 401 U.S. at 410; Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607, 611 (1980).
222 See Overton Park, 401 U.S. at 410; J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
223 See Overton Park, 401 U.S. at 410; J.W. Hampton, 276 U.S. at 409.
224 See J.W. Hampton, 276 U.S. at 409.
225 See Overton Park, 401 U.S. at 410.
226 See Yakus v. United States, 321 U.S. 414, 427 (1944).
227 See Mistretta v. United States, 488 U.S. 361, 372 (1989).
228 See Yakus, 321 U.S. at 427.
229 See Industrial Union Dept. v. American Petroleum Inst., 448 U.S. 607, 611 (1980).
230 See American Textile, 452 U.S. at 547–48 (Rehnquist, J., dissenting); Industrial Union, 448 U.S. at 686 (Rehnquist, J., concurring); Schoenbrod, supra note 19, at 732.
231 See American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999), opinion modified on reh’g, American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (per curiam), rev’d sub nom. Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903 (2001).
232 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 914 (2001).
233 See Webster v. Doe, 486 U.S. 592, 600 (1988).
234 See id.
235 See id.
236 See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
237 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
238 See id. at 413.
239 See J.W. Hampton, 276 U.S. at 409.
240 See Webster, 486 U.S. at 601.
241 See Dalton v. Specter, 511 U.S. 462, 477 (1994); Webster, 486 U.S. at 601; Heckler v. Chaney, 470 U.S. 821, 838 (1985).
242 See Dalton, 511 U.S. at 469; Webster, 486 U.S. at 600; Chaney, 470 U.S. at 831.
243 See Dalton, 511 U.S. at 469.
244 See Webster, 486 U.S. at 600; Chaney, 470 U.S. at 831.
245 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
246 See Schechter Poultry, 295 U.S. at 530.
247 See Overton Park, 401 U.S. at 411.
248 See Schechter Poultry, 295 U.S. at 530.
249 See Overton Park, 401 U.S. at 411.
250 See Breyer et al., supra note 49, at 35.
251 See Mistretta v. United States, 488 U.S. 361, 374 (1989). The nondelegation doctrine requires that Congress provide a clear guiding principle when delegating. See id.
252 See Overton Park, 401 U.S. at 410. The “committed to agency discretion” exception requires that Congress delegate through extremely broad and vague statutory language. See id.
253 See Mistretta, 448 U.S. at 376 n.10.
254 See Webster v. Doe, 486 U.S. 592, 600–01 (1988).
255 See id.
256 See Mistretta, 448 U.S. at 376 n.10.
257 See id.
258 See American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999), opinion modified on reh’g, American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (per curiam), rev’d sub nom. Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903 (2001).
259 See id.
260 See supra section II(B). This creates a tension, of course, because the agency would not want the court to find “law to apply.” Thus, it is ironic that the agency’s own policy statements can be used to defeat the “committed to agency discretion” defense.
261 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 912–14 (2001).
262 See id. at 912; J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
263 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
264 See J.W. Hampton, 276 U.S. at 409.
265 See Overton Park, 401 U.S. at 410.
266 See infra notes 267–72 and accompanying text.
267 See J.W. Hampton, 276 U.S. at 409.
268 See Overton Park, 401 U.S. at 410.
269 See Yakus v. United States, 321 U.S. 414, 426 (1944).
270 See Heckler v. Chaney, 470 U.S. 821, 830 (1985).
271 See Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); J.W. Hampton, 276 U.S. at 409.
272 See Yakus, 321 U.S. at 426.
273 See id.
274 See id.
275 See id.
276 Id.
277 See Panama Refining, 293 U.S. at 421.
278 See Yakus, 321 U.S. at 426.
279 See J.W. Hampton, 276 U.S. at 409.
280 See Yakus, 321 U.S. at 426.
281 See Heckler v. Chaney, 470 U.S. 821, 830 (1985).
282 See infra notes 283–86 and accompanying text.
283 See Chaney, 470 U.S. at 830. But see Levin, supra note 166, at 693 (arguing that the Court has “overemphasized” the judicial review aspect of its “no law to apply” reasoning). Professor Levin maintains that, “judicial review is virtually always feasible, and that the real question is one of desirability.” Id.
284 See Chaney, 470 U.S. at 830.
285 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
286 See Levin, supra note 166, at 707.
287 Id.
288 See id.
289 See Overton Park, 401 U.S. at 410.
290 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 914 (2001); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
291 See J.W. Hampton, 276 U.S. at 409; American Trucking, 121 S.Ct. at 914.
292 See Webster v. Doe, 486 U.S. 592, 605 (1988).
293 See id.
294 See J.W. Hampton, 276 U.S. at 409.
295 See American Trucking, 121 S.Ct. at 912.
296 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
297 See American Trucking, 121 S.Ct. at 914.
298 See supra Section III(A).
299 See infra Section III(E).
300 See Mistretta v. United States, 488 U.S. 361, 371 (1989); Schoenbrod, supra note 19, at 732.
301 See Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 913–14 (2001); Mistretta, 488 U.S. at 372. The Supreme Court has not struck down a delegation as unconstitutional since 1936. See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936).
302 See National Cable Television Ass’n, Inc. v. United States, 415 U.S. 352, 353 (1974); see also American Trucking, 121 S.Ct. at 912–14.
303 See Levin, supra note 166, at 707.
304 See Panama Refining, 293 U.S. at 421.
305 See supra Section III(D).
306 See id.
307 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 409 (1971).
308 See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
309 See supra Section III(A).
310 See J.W. Hampton, 276 U.S. at 409.
311 See Overton Park, 401 U.S. at 410.
312 See Overton Park, 401 U.S. at 410; J.W. Hampton, 276 U.S. at 409.
313 See supra Section III(A).
314 See id.
315 See supra Section I(B).
316 See supra Section I(C).
317 See Overton Park, 401 U.S. at 410 (quoting legislative history of  701(a)(2)).
318 See supra Section II(B).
319 See Mistretta v. United States, 488 U.S. 361, 372 (1989).
320 See Overton Park, 401 U.S. at 410.
321 See supra Section III(A).
322 See Mistretta, 488 U.S. at 372.
323 See Overton Park, 401 U.S. at 410.
324 See American Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir. 1999), opinion modified on reh’g, American Trucking Ass’ns, Inc. v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (per curiam), rev’d sub nom. Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903 (2001).
325 See Dalton v. Specter, 511 U.S. 462, 473 (1994).
326 See id. at 473 n.5 (noting that respondents had not raised nondelegation argument).
327 See supra Section III(A).
328 See Panama Refining, 293 U.S. at 430; Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903, 912 (2001).
329 See Panama Refining, 293 U.S. at 430; American Trucking, 121 S.Ct. at 912.
330 See Dalton, 511 U.S. at 473.
331 See id.
332 See Webster v. Doe, 486 U.S. 592, 605 (1988).
333 See id.
334 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
335 See supra Section III(A).
336 See Dalton, 511 U.S. at 473.
337 See Panama Refining, 293 U.S. at 421; American Trucking, 121 S.Ct. at 912.
338 See Donald A. Dripps, Delegation and Due Process, 1988 Duke L.J. 657, 682 n.105 (1988). Professor Dripps’ article focuses mainly on the implications of his proposition that procedural due process cases are governed by the nondelegation doctrine. See id. at 659. In a footnote, however, he links nondelegation with the “committed to agency discretion” exception to judicial review under the APA. See id. at 682 n.105. More specifically, Professor Dripps suggests: “If my [due process] thesis is correct, the nondelegation doctrine makes it unconstitutional for Congress to commit the exercise of legislative power entirely to agency discretion.” Id.
339 See Overton Park, 401 U.S. at 410.