Amee B. Bergin*

Abstract:  An overly broad delegation implicates two conflicting doctrines: the nondelegation doctrine and the “committed to agency discretion” exception to judicial review. Under a traditional application of the nondelegation doctrine, courts strike down delegations that lack an intelligible principle as unconstitutional, reasoning that Article I implicitly prohibits Congress from giving away its legislative power. Such a ruling renders the agency powerless, because the agency has no authority to act under the failed delegation. Conversely, by prohibiting courts from reviewing agency actions in cases where there is “no law to apply,” the “committed to agency discretion” exception affords an agency unfettered discretion when it acts under the authority of an overly broad delegation. As such, these two doctrines, which employ essentially the same test, dictate contradictory results. Moreover, if applied to administrative rulemaking, the “committed to agency discretion” exception would be unconstitutional because it would violate the nondelegation doctrine.


The Supreme Court originally developed the nondelegation doctrine to ensure that Congress did not transfer its constitutionally vested legislative power.1 Just as important, the nondelegation doctrine also served to check the delegatee’s power by ensuring that Congress had cabined the delegatee’s discretion by providing a guiding intelligible principle.2 In the wake of the New Deal, however, the Court began to construe the doctrine much less strictly, upholding increasingly broader delegations by finding that relatively vague stan[*PG364]dards fulfilled the intelligible principle requirement.3 During the past thirty years, as the administrative state boomed, courts further softened enforcement of the nondelegation doctrine.4 Although the D.C. Circuit recently resuscitated the “moribund”5 doctrine when it held that air quality regulations promulgated by EPA under the Clean Air Act (CAA) lacked an intelligible principle,6 the revival proved temporary when the Supreme Court unanimously reversed that holding in February of this year.7 As such, the American Trucking decision makes clear that the Court’s interpretation and application of the nondelegation doctrine remains consistent with that of the past several decades.8 Specifically, the Court reiterated that only in rare and extreme instances does a delegation violate the nondelegation doctrine.9

In light of the recent interest surrounding the nondelegation doctrine, now is a particularly appropriate time to examine the contradiction embodied by the nondelegation doctrine and the “committed to agency discretion” exception to judicial review. Under section 701(a)(2) of the Administrative Procedure Act (APA),10 judicial review of an agency action is precluded if the governing statute provides “no law to apply.”11 Although such a finding is rare,12 in several cases the Supreme Court abstained from reviewing an agency action be[*PG365]cause it found that the action had in fact been “committed to agency discretion.”13

On a most basic level, the nondelegation doctrine and the “committed to agency discretion” exception contradict each other. Under the nondelegation doctrine, an extremely broad delegation is deemed unconstitutional,14 while under the “committed to agency discretion” exception, an agency enjoys virtually unlimited discretion when acting under the authority of such a delegation.15 Given that the standards for the intelligible principle requirement and “no law to apply” test are virtually identical,16 such inconsistent results are highly problematic.

I.  The Nondelegation Doctrine

A.  Delegation in the Early Years

In its strictest and simplest form, the nondelegation doctrine asserts that any statute through which Congress17 delegates its legislative18 power is unconstitutional.19 Both textual20 and structural21 arguments support this reading of the Constitution. Article I, section 1 states that, “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”22 Structurally, the Constitution establishes the three branches of government. Each branch is required to fulfill its assigned duties, and by implication, forbidden from transferring its duties to one of the other branches.23 Indeed, in 1989, the [*PG366]Court explained that, “[t]he nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.”24

The nondelegation argument was made as early as 1813 in The Brig Aurora v. United States, in opposition to a congressional act that took effect upon the President’s declaration that Great Britain or France had stopped interfering with U.S. trade.25 The Aurora Court rejected the nondelegation argument, however, reasoning that Congress had not delegated its legislative authority to the President, but rather had “conditionally” exercised it.26 Although Congress had technically delegated its rule-making power to the President in Aurora,27 the Court probably upheld the delegation because it was extremely limited in scope: Congress had provided clear standards regarding who was granted authority,28 what was subject to that authority,29 and when the authority could be exercised.30 In essence, Congress had significantly restricted the scope of the President’s power such that he served more as the trigger for an already-enacted law than as the legislator of that law.31

During the next one hundred years, the Court continued to reject the nondelegation doctrine under the pretense that legislative power had not been delegated by Congress.32 In fact, the Court loosened its Aurora standard by upholding statutes even in cases where Congress had not provided standards as clear and restrictive as those found in Aurora.33 Notably, the Court upheld statutes that did not [*PG367]make it obvious when the delegated authority could be exercised,34 and it did so under the continued assertion that a delegation of legislative power in fact had not occurred.35

For example, in Field v. Clark, the Court upheld a delegation of authority that allowed the President to impose a retaliatory tax upon a determination that other nations had imposed “reciprocally unequal and unreasonable” taxes on American products sold abroad.36 The Court characterized the nature of the President’s determination as factual, and therefore not an exercise of legislative power.37 However, the statutory standard of “unequal and unreasonable” is considerably more vague and subjective than had been provided by Congress in Aurora.38

Furthermore, in United States v. Grimaud, the Court upheld a statute that delegated authority to the Secretary of Agriculture to “make provision for the protection against destruction and depradations upon the public forests.”39 The Court held that the statute did not violate the nondelegation doctrine because Congress had not delegated the power to legislate, but merely the “power to fill up the details” of the act.40 In this way, the Court gradually—and unofficially—permitted congressional delegations of legislative authority to broaden in scope.41

In a bold 1928 decision, J.W. Hampton v. United States, the Court admitted for the first time that it was upholding a statute—the Tariff Act of 1922—that did in fact delegate legislative power.42 The Court reconciled its holding with the nondelegation doctrine by reasoning that the delegation of legislative power is constitutional “[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [legislate] is directed to conform.”43 Under the Tariff Act, Congress had granted the President the power to adjust tariffs whenever it was necessary to “equalize the costs of production in the United States and the principal competing coun[*PG368]try.”44 Thus, the Court concluded that the statutory standard “equalize the costs of production” constituted an “intelligible principle” that sufficiently restricted the President’s power.45

Although the Hampton Court did not specify how detailed the intelligible principle must be, it was satisfied in that case with a general statement of purpose46 and a requirement that the President consult experts and make findings.47 Significantly, the Court’s motivation to uphold the statute seems to have stemmed in part from the practical concern that certain problems—such as fluctuating tariffs—need swift and expert attention, a condition the traditional legislative process simply cannot accommodate.48

B.  Delegation in the New Deal Era

During the New Deal era, Congress enacted a series of statutes aimed at rectifying the national economic crisis.49 The Court responded by giving teeth to the nondelegation doctrine for the first time in its history.50 Specifically, during the mid-1930s, the Court struck down three statutory provisions as unconstitutional delegations of congressional legislative authority.51

In Panama Refining Co. v. Ryan, the Court found that Congress had granted overly broad legislative power to the President by permitting him to ban interstate shipments of “hot oil”52 under section 9(c) of the National Industrial Recovery Act (NIRA) without providing substantive or procedural standards to govern his decision.53 Specifically, the Court held that section 9(c) was unconstitutional because “Congress has declared no policy, has established no standard, has laid down no rule” (i.e., has articulated no “intelligible princi[*PG369]ple”54) defining the conditions under which the President could exercise the delegated power.55 Because the Court viewed the nondelegation doctrine as a constitutional check prohibiting Congress from giving away its Article I powers, its analysis was focused solely on the language and history of the statute.56 In particular, the Court examined the language of section 9(c)57 and other related provisions of NIRA.58

Significantly, the Court’s nondelegation analysis did not include a discussion of the manner in which the President exercised the delegated authority.59 The Court did not review the substance of the President’s decision, or the process by which the decision was rendered.60 Indeed, the Court rejected the argument that the delegation carried an implicit governing standard by virtue of the fact that the delegatee was the President, who “has acted, and will act, for what he believes to be the public good.”61 Explaining the rationale behind the nondelegation doctrine, the Court stated: “The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. . . . The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”62 In other words, the President’s actions could not save an otherwise unconstitutional delegation, because the non[*PG370]delegation question was determined by the perimeters of the delegation itself.63

The Court offered a similar analysis in Schechter Poultry, which considered the constitutionality of section 3 of NIRA, a provision authorizing the President to approve agency-promulgated “codes of fair competition.”64 The Court, concerned primarily with the vagueness of the phrase “unfair methods of competition,”65 again looked only at the language of the statute for an intelligible principle that would have curtailed the President’s discretion and limited the scope of his rule-making authority.66 In particular, the Court emphasized the lack of procedural requirements, distinguishing Schechter Poultry, from cases in which vague statutory delegations were upheld because Congress had established procedural requirements that served as guiding principles.67 Finding that Congress had provided no such guiding principle in Schechter Poultry,68 the Court again struck down a statutory provision as a violation of the nondelegation doctrine without discussing the substance of the code, or the process by which it was promulgated.69

In Carter Coal, the third and final Supreme Court decision to find that Congress had delegated its legislative authority in terms too [*PG371]broad, the Court provided very little reasoning on the specific issue of delegation.70 In this case, there was neither analysis of the statutory language or legislative history, nor mention of the substance or process of the delegatee’s rule-making.71 Instead, the Court merely provided a cursory discussion of the delegation issue and treated the outcome as a foregone conclusion.72 Thus, Carter Coal provided no meaningful contribution to the nondelegation analysis set forth in Panama Refining and Schechter Poultry.73

Taken together, however, the three cases establish a framework in which to assess the constitutionality of legislative delegation.74 By restricting the scope of its inquiry to the language and history of the statute itself, the Court made it clear in the mid-1930s that the question of delegation turned on whether Congress had provided sufficient substantive guidance and procedural requirements to curtail the delegatee’s discretion.75 The delegation question was not determined by an analysis of the substance of the delegatee’s rules, or by the actual process by which the rules were promulgated.76

After 1936, the Court returned to a broader interpretation of the nondelegation doctrine, actually construing the doctrine more loosely than it had in the past.77 Most notably, in Yakus v. United States, the Court announced an exceedingly generous standard by which legislative delegations would henceforth be assessed.78 The Court reasoned that:

only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress had been obeyed, would we be justified in [*PG372]overriding its choice of means for effecting its declared purpose.79

This, of course, is a much more lenient interpretation of the intelligible principle than the Hampton Court had proposed.80 In Yakus, the Court upheld a provision of the Emergency Price Control Act that directed the Price Administrator to fix prices that “in his judgment will be generally fair and equitable and will effectuate the purposes of this Act.”81 The Court may have been more willing to accept such a vague standard in this case because it afforded Congress more flexibility in matters of war and foreign relations.82

C.  Delegation and the Administrative State

The regulatory boom in the early 1970s83 rekindled the nondelegation debate, both in the courts and in law journals.84 The revived discussion has been markedly less focused on formalistic constitutional arguments, however, and more concerned with broader philosophical questions of accountability and other democratic principles within a representative government.85 Judge Skelly Wright framed the issue in this way: “An argument for letting the experts decide when the people’s representatives are uncertain or cannot agree is an argument for paternalism and against democracy.”86 Others have echoed this sentiment, and none more adamantly than David Schoenbrod, who argues that delegation not only allows legislators to avoid making tough and unpopular decisions, but that such “buck passing” is in fact the legislature’s primary reason for delegating its authority.87 Nadine Strossen takes this argument one step further by suggesting [*PG373]that delegation directly impinges upon the liberty of all American citizens by severely undermining our ability to oppose agency-promulgated regulations.88

In response to these democracy-based critiques of delegation, Dan Kahan attacks the notion of “democracy” as an evasive, empty—and ultimately useless—standard by which to assess the validity of delegation.89 He suggests that the many competing notions of what constitutes a “democracy” are particularly malleable in the context of the delegation debate, and therefore should be removed from the discussion altogether.90 In an even more direct (and irreverent) attack aimed at both the doctrine and the Court, Peter Schuck predicts that the nondelegation debate is in reality a hollow one, because the Court would never dare to revive the nondelegation doctrine in its traditional (i.e., extreme) form.91 To take the nondelegation doctrine to its logical conclusion, he notes, the Court would be forced to dismantle the administrative state as we have come to know it.92

Chief Justice Rehnquist, however, appears both ready and willing to call that bluff.93 In his concurring opinion in Industrial Union Department v. American Petroleum Institute (the Benzene case), Justice Rehnquist reacted against what he perceived to be the Court’s permissiveness in upholding an overly broad delegation of legislative power.94 Specifically, Justice Rehnquist called for the revival of the nondelegation doctrine in general,95 and argued for its application in that case in particular.96 The provision under fire in Industrial Union [*PG374]was section 6(b)(5) of the Occupational Safety and Health Act (OSHA), which directed the Secretary of Labor to “set the standard which most adequately assures [workplace safety] to the extent feasible.”97 Through an unusually aggressive construction of the phrase “to the extent feasible,”98 the majority held that Congress had not violated the nondelegation doctrine; instead, it struck down the agency’s safety standard for failing to fulfill the statutorily mandated procedural requirements.99 Referring to the feasibility standard as a “legislative mirage” that Congress used to avoid resolving a politically charged issue, Justice Rehnquist would have struck down the delegation based on an analysis of the statutory language and history.100

Justice Rehnquist, joined by then-Chief Justice Burger, again advocated for strict application of the nondelegation doctrine in his American Textile Manufacturers v. Donovan (the Cotton Dust case) dissent.101 In the Cotton Dust case, the majority again held that the phrase “to the extent feasible” provided sufficient statutory guidance.102 The Court found that the Secretary of Labor simply had not followed the statute’s procedural requirements.103 Consistent with Industrial Union, the Court’s reasoning in this case confirmed that the Court answered the delegation question by looking to the language and legislative history of the statute.104 On that basic point, all nine justices impliedly agreed.105

Despite the urging of nondelegation supporters to the contrary, the Court has given no indication that it will return to a stricter view of the doctrine.106 Instead, the Court has continued to uphold broad grants of legislative authority,107 sometimes even avoiding the delegation issue altogether by reading statutes narrowly.108

[*PG375] In National Cable Television Ass’n, Inc. v. United States, the Court considered whether a provision of the Independent Office Appropriation Act109 violated the nondelegation doctrine by permitting the Federal Communications Commission (FCC) to levy a tax.110 Directly acknowledging its desire to avoid the nondelegation issue,111 the Court stated that: “the hurdles revealed in [Schechter Poultry and Hampton] lead us to read the Act narrowly to avoid constitutional problems.”112 Through such reasoning, the Court rejected the petitioner’s argument that Congress had authorized the FCC to levy a tax.113 Rather, the Court read the provision “narrowly as authorizing not a ‘tax’ but a ‘fee,’” and thus delegation of legislative power was not implicated.114

In Mistretta v. United States, the Court did not side-step the delegation issue, but simply admitted that it was upholding a broad delegation of authority.115 Through the Sentencing Reform Act, Congress empowered the United States Sentencing Commission to promulgate Federal Sentencing Guidelines.116 The Court explained that the delegation was constitutional because Congress had provided substantive “goals”117 and “purposes”118 to guide the Commission. The Court also [*PG376]noted that the legislative history further guided the Commission’s rulemaking.119 Relative to other delegations, the statutory standard at issue in Mistretta was not vague. In fact, it was considerably more detailed than those upheld in previous cases, such as American Textile.120

As such, the most striking aspect of the Mistretta opinion was not its holding, but a dramatic statement in which the majority acknowledged that its approach to the delegation question had been shaped largely by the growing need for administrative assistance in carrying out the business of Congress.121 Specifically, the Court explained that its nondelegation jurisprudence “has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad directives.”122 Thus, the Court implicitly reasoned that a fundamental constitutional doctrine once meant to protect the basic framework of the government123 had given way to more practical concerns.124 In light of the Court’s increasingly explicit refusals to strike down delegations as unconstitutional, it is with good reason that some commentators consider the nondelegation doctrine to be dead.125

D.  Delegation and Whitman v. American Trucking Associations, Inc.

It was thus of great surprise126 when in May 1999 the D.C. Circuit announced the return of the nondelegation doctrine in American [*PG377]Trucking.127 The court used the long-dormant doctrine to strike down final rules revising primary and secondary National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) and ozone.128 Like most legislative delegations,129 the Clean Air Act provided EPA with a fairly vague standard by which to promulgate public health regulations.130 The majority agreed with the plaintiff that “EPA had construed sections 108 & 109 of the Clean Air Act so loosely as to render them unconstitutional delegations of legislative power.”131 More specifically, the court held that EPA had failed to articulate an intelligible principle by which the PM and ozone standards were determined, rendering the congressional delegation of legislative authority too broad.132 The case was then remanded back to EPA to create an intelligible principle to guide its rulemaking.133

Critics of the American Trucking decision asserted, however, that the court’s reasoning was flawed for several reasons.134 First, they argued that by invoking the nondelegation doctrine, the majority relied on case law from the 1930’s, thereby ignoring more than sixty years of common law precedent in which the Supreme Court has consistently rejected nondelegation arguments and upheld extremely broad delegations of legislative power.135 In his dissenting opinion, Judge Tatel explained that if the court had applied the nondelegation doctrine as it had been applied in more recent cases, it would have found that [*PG378]section 109 does in fact pass constitutional muster.136 He reasoned that:

section 109’s delegation of authority is narrower and more principled than delegations the Supreme Court and this court have upheld since Schechter Poultry, and . . . the record in this case demonstrates that EPA’s discretion was in fact cabined by section 109.137

Several scholars supported Judge Tatel’s conclusion that the standard in question in American Trucking was no more vague than other statutory provisions that have survived nondelegation attacks.138

Moreover, some critics noted that by requiring EPA to develop an intelligible principle to guide its interpretation of the CAA,139 the court distorted the Hampton rule, which states that Congress, not the agency, must articulate an intelligible principle when delegating legislative power.140 Thus, as applied in American Trucking, the nondelegation doctrine no longer serves to prevent Congress from delegating its legislative power,141 nor does it provide a check on agency discretion.142 Even one of the plaintiff’s attorneys acknowledges that the American Trucking decision “establishes a new approach to the constitutional non-delegation doctrine,”143 though he characterizes the development as less than “radical.”144

Finally, critics of the decision proposed that the case should have been decided not under the nondelegation doctrine, but instead under the APA’s arbitrary and capricious standard of judicial review.145 [*PG379]Indeed, the court’s own analysis supports this proposition.146 The majority focused its analysis of the nondelegation issue on an in-depth substantive and procedural review of the NAAQS,147 even going so far as to call EPA’s standard-setting “arbitrary and capricious.”148 Such attention to the substance of the PM and ozone regulations rather than the language of the CAA led Judge Tatel to conclude in his dissent:

[w]hether EPA arbitrarily selected the studies it relied upon or drew mistaken conclusions from those studies (as petitioners argue), or whether EPA failed to live up to the principles it established for itself (as my colleagues believe . . . ), has nothing to do with our inquiry under the nondelegation doctrine. Those issues related to whether the NAAQS are arbitrary and capricious.149

Judge Tatel further argued that EPA provided sufficient reasoning to defend its standard setting such that regulations should have withstood traditional arbitrary and capricious review.150

In a per curiam decision partially denying EPA’s petition for rehearing, the D.C. Circuit held en banc that the nondelegation holding was valid.151 The court also responded to criticisms by further explaining the rationale behind its new approach to the nondelegation doctrine.152 The court reasoned that its new approach to nondelegation was consistent with, and even required by, the Chevron doctrine.153 The court stated, “just as we must defer to an agency’s reasonable interpretation of an ambiguous statutory term, we must defer to an agency’s reasonable interpretation of a statute containing only an ambiguous principle by which to guide its exercise of delegated authority.”154 In other words, the D.C. Court of Appeals extended the Chevron doctrine from granting agencies deference under judicial re[*PG380]view,155 to granting agencies the opportunity to save what would otherwise have been deemed an unconstitutionally broad delegation of legislative power.156

In Whitman v. American Trucking Associations, Inc., however, the Supreme Court not only reversed the D.C. Circuit’s nondelegation holding,157 but also sharply criticized the reasoning underlying that holding.158 Writing for a unanimous Court, Justice Scalia adamantly explained that the D.C. Circuit was mistaken in granting EPA the opportunity to save the delegation by reinterpreting it more narrowly.159 Only Congress, the Court reasoned, can cure an unconstitutional delegation, because only Congress has the power to delegate such power in the first place.160 Moreover, the Court noted, only the courts (not Congress or the agency) have the power to determine whether the delegation is constitutional.161 As such, the Court rejected the D.C. Circuit’s new approach to the nondelegation doctrine.

The Court further found that there was no need for Congress to cure the delegation because the criteria “requisite for human health” satisfies the intelligible principle test, and “is in fact well within the outer limits of our nondelegation precedents.”162 As such, the Court in American Trucking maintained a lenient application of the intelligi[*PG381]ble principle test in a manner consistent with the past seventy years of precedent.163 Notably, the Court was unanimous on this point,164 marking an apparent departure for Chief Justice Rehnquist, who during the 1980’s had twice called for a stricter application of the nondelegation doctrine.165

Interestingly, respondents had argued that the “requisite for human health” criteria would fulfill the intelligible principle test only if the Court found that costs must be considered as part of EPA’s “human health” analysis.166 In other words, respondents were willing to concede the delegation issue if the Court would read a cost-benefit analysis into the CAA, arguing that the phrase “requisite for human health” is unconstitutionally vague unless interpreted to require a cost-benefit analysis.167 Rejecting this argument, the Court explicitly stated that section 109(b) “unambiguously bars cost considerations from the NAAQS-setting process,”168 particularly when read in the context of the CAA as a whole, and in light of its legislative history.169 Moreover, the Court implied that a cost-benefit analysis would actually [*PG382]serve to make the “requisite for human health” standard more vague.170

II.  “Committed to Agency Discretion”

Chapter 7 of the Administrative Procedure Act (APA) governs judicial review of agency actions,171 and lays out two instances in which agency actions are excepted from judicial review.172 First, courts are barred from reviewing agency actions where Congress has explicitly precluded judicial review under the terms of the governing statute.173 Second, courts are barred from reviewing agency actions that are “committed to agency discretion.”174 Because the Court has found that the APA carries a strong presumption of judicial review,175 these two exceptions have been construed narrowly.176 Specifically, the Court announced in 1971177 that it will find an agency action “committed to agency discretion” only in rare cases where the terms of the governing statute are so broad that there is no meaningful law to guide the court’s decision, i.e., there is “no law to apply.”178

A. Citizens to Preserve Overton Park, Inc. v. Volpe

The Supreme Court first articulated the “no law to apply” test in Citizens to Preserve Overton Park, Inc. v. Volpe, where the Secretary of [*PG383]Transportation argued that his decision to build a highway through a city park was not subject to judicial review because it fell into the “committed to agency discretion” exception.179 Rejecting this argument, the Court held that the Secretary’s decision had not been “committed to agency discretion,” and therefore did not escape judicial review.180 Specifically, the Court pointed to the clear statutory language governing the use of public parkland as evidence that the Secretary did not enjoy unfettered discretion over the placement of the highway.181 Moreover, the Court explained that section 701(a)(2) is “a very narrow exception . . . applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply’.”182

The Court’s “no law to apply” reasoning in Overton Park met with sharp criticism.183 Specifically, scholars focused on the possibility that the “no law to apply” test could permit agency abuse of discretion to escape judicial review.184 Arguing that the Court misunderstood the legislative history on which it based its interpretation of section 107(a)(2), Professor Kenneth Culp Davis rejects the Court’s proposition that Congress meant to preclude judicial review of agency actions when there was “no law to apply.”185 Rather, he maintains that the section 107(a)(2) exception was meant only to preclude review of statutory questions, not of an agency’s abuse of discretion.186 Post-Overton Park decisions are consistent with the approach advocated by Professor Davis.187

[*PG384] Professor Ronald M. Levin echoes Professor Davis’ observation, and further criticizes the Court’s reasoning in Overton Park by pointing out “serious flaws in the Court’s apparent holding that the applicability of section 701(a)(2) turns solely on whether there is ‘law to apply’ to the agency decision.”188 The “flaws” include technical errors in which the Court mischaracterize the holding of a previously-decided case, and twice incorrectly described standards of judicial review of agency actions.189 Most notably, he maintains, by adopting the Senate Judiciary Committee’s interpretation of section 701(a)(2), the Court failed to draw a meaningful distinction between whether an agency action is reviewable and whether it is legal.190 Thus, as articulated in Overton Park, the “no law to apply” test rendered section 701(a)(2) superfluous.191 Professor Levin attributes these problems to the Court’s hastiness in handing down the decision.192

B.  An Increasingly Broader Application of Overton Park

In response to such criticisms, and in keeping with lower court decisions,193 a decade later the Supreme Court began to broaden the Overton Park test by declining to exercise judicial review in three cases.194 In Heckler v. Chaney, the Court announced that agency decisions not to act are presumptively unreviewable.195 In Heckler, death row inmates contacted the Food and Drug Administration (FDA) regarding drugs to be used in a newly adopted death penalty procedure.196 The inmates, arguing that the drugs had not been approved197 for use in human executions, asked the FDA to investigate their claim and enforce the regulatory requirements. However, the [*PG385]Commissioner of the FDA declined to act.198 Relying on the “committed to agency discretion” exception,199 the Court held that the Commissioner’s decision not to act was beyond the scope of judicial review.200 More importantly, the Court announced that the presumption of reviewability does not extend to agency inaction.201

In Webster v. Doe, the Court examined the Central Intelligence Agency (CIA) Director’s decision to discharge security officer “John Doe” from employment because he was a homosexual.202 Under section 102(c) of the National Security Act (NSA), the Director of the CIA may terminate employment whenever he determines such an action to be necessary.203 The Court declined to review the Director’s decision under the APA,204 holding that the action was “committed to agency discretion.”205 The Court reasoned that section 102(c) provided “no meaningful standard against which to judge the agency’s exercise of discretion,” and thus there was “no law to apply.”206 As one commentator noted, however, the Webster decision was not based solely on a “no law to apply” analysis.207 Rather, the Court weighed more practical considerations, and in reality was reluctant to become involved in matters of national security.208

In Dalton v. Specter, the Court was asked to review a report created by the Base Closing Commission and approved by the President.209 The Defense Base Closure and Realignment Act authorized the Commission to recommend military base closings. If the President approved the report and Congress did not formally disapprove it, the recommendations would be implemented.210 The Act was designed “to provide a fair process that will result in the timely closure and rea[*PG386]lignment of military installations.”211 Holding that the President’s approval of the Commission’s report was not subject to judicial review, the Court explicitly rejected the respondents’ argument that such a holding “virtually repudiate[d]” Marbury v. Madison.212 Significantly, the Court noted that the respondents had not argued that the Act violated the nondelegation doctrine.213

III.  It’s All or Nothing: The Logical Inconsistency Presented by Nondelegation and “Committed
to Agency Discretion”

A.  Standards for Nondelegation and “Committed to Agency Discretion”

Both nondelegation and “committed to agency discretion” inquiries are triggered by broadly written statutes.214 When Congress uses vague statutory language to delegate authority, as it often does,215 the stage is set for plaintiffs to argue that an agency action has violated the nondelegation doctrine,216 or for the government to defend its action as “committed to agency discretion.”217 For instance, in all post-Hampton cases, courts have commenced their nondelegation analyses by referencing a broad grant of delegation,218 often directly acknowledging it to be the plaintiff’s argument.219 Similarly, the “committed to agency discretion” exception to judicial review rests on the premise that through a broad governing statute Congress has impliedly granted an agency unfettered discretion.220 As such, the very same starting point—a broadly written statute—simultaneously implicates both doctrines.221

[*PG387] Moreover, courts analyze questions of delegation and “committed to agency discretion” in a strikingly similar fashion.222 In both instances, the court’s task is to determine whether the agency’s action was guided by a clear statutory standard.223 Specifically, a delegation is unconstitutional if the governing statute lacks an intelligible principle,224 and an agency action is “committed to agency discretion” if the governing statute provides “no law to apply.”225

In delegation inquiries, the intelligible principle requirement is fulfilled when the governing statute provides an agency with sufficiently clear goals.226 This requirement has become in many ways an empty one, with courts establishing over time an extremely low threshold for defendants to meet.227 For example, courts have found that standards such as “fair and equitable”228 and “to the extent feasible”229 fulfill the intelligible principle requirement.

Recent criticisms of the Court’s increasingly more lenient application of the nondelegation doctrine suggested that the trend might have begun moving toward a stricter or more moderate application.230 Most notably, in American Trucking, the D.C. Circuit held that EPA’s interpretation of the standard “to protect public health” with an “adequate margin of safety” was too vague, and thus did not fulfill the intelligible principle test.231 Any speculation that the nondelegation doctrine might be resurrected was put to rest in February, however, when the Supreme Court reversed the D.C. Circuit’s nondelegation holding, reiterating in American Trucking its commitment to continue applying the intelligible principle test in a lenient manner, consistent with that of the past seventy years.232

[*PG388] The “no law to apply” test, on the other hand, is met when the language of the governing statute is sufficiently unclear, such that no meaningful standard can be discerned.233 Thus, by failing to provide “law” in the form of clear statutory language, Congress impliedly commits an action to agency discretion.234 Stated a different way, when Congress fails to provide “law,”235 by definition it fails to provide an “intelligible principle.”236

The Court initially established the “no law to apply” test as an extremely difficult one to meet, explaining that the exception would apply only in “rare cases.”237 In Overton Park, the Secretary’s decision to build a highway through a park did not escape judicial review because the statutory language “feasible and prudent” was sufficiently clear to constitute “law to apply.”238 It would be fair to say, additionally, that the statutory standard “feasible and prudent” constituted an intelligible principle that served to cabin the Secretary’s discretion.239

The “no law to apply” standard has become somewhat less stringent.240 In several cases, the Court has found that Congress used sufficiently broad statutory language to warrant application of the “committed to agency discretion” exception.241 Significantly, though, in none of these cases did the Court rely solely on the “no law to apply” test.242 Instead, the Court explicitly243 or implicitly244 considered other factors in its analyses. Thus, while the “no law to apply” test has become somewhat easier to meet, it remains a relatively narrow exception that applies only in “rare cases.”245

B.  Sources of Intelligible Principles and “Law to Apply”

Traditionally, courts have resolved both nondelegation246 and “committed to agency discretion”247 inquiries by looking to the lan[*PG389]guage of the governing statute. Specifically, courts have examined the relevant statutory language to determine whether an intelligible principle248 or “law to apply”249 can be discerned. The statute serves as the analytical focal point because it is, of course, the tool through which Congress delegates.250 Moreover, the manner in which Congress delegated is, in theory, precisely the issue at the center of nondelegation251 and “committed to agency discretion”252 cases.

Courts often look beyond the specific statutory provision when deciding whether Congress provided an intelligible principle253 or “law to apply.”254 Not surprisingly, courts will read the relevant statutory phrase or phrases within either the context of the statute as a whole255 or the statute’s legislative history.256 However, because the emphasis remained focused on Congress as the delegator, this development was a relatively minor one.257

In a much more dramatic shift, courts began to look beyond Congress (the delegator) to the agency (the delegatee).258 That is, both doctrines have evolved such that lower courts recently have begun to allow the agency itself to provide the intelligible principle259 or “law to apply.”260 Although the Supreme Court made clear in American Trucking that such a shift is inappropriate in the context of a nondelegation analysis,261 thus far it has made no such finding in the context of a “committed to agency discretion” analysis. The same policy considerations that make such a shift inappropriate in the delegation [*PG390]context,262 however, are equally as applicable in the “committed to agency discretion” context.263

C.  Intelligible Principles, “Law to Apply,” and Judicial Review

It is clear that the intelligible principle requirement264 and the “no law to apply” test265 exist in theory266 as tools by which courts determine the nature of a congressional delegation. Specifically, with nondelegation inquiries, courts ask whether Congress gave away its legislative power;267 with “no law to apply” inquiries, courts ask whether Congress impliedly committed a particular action to an agency’s discretion.268 However, it is also true that both tests fulfill another important purpose as well. Both the nondelegation doctrine269 and the “no law to apply” exception270 guarantee that courts will either have a workable standard by which to conduct judicial review, or in the absence of such a standard, will have a legal basis on which to deny review of the agency action.

Although nondelegation was developed as a separation of powers doctrine to safeguard against Congressional “buck passing” and unfettered agency discretion,271 it has also served a more practical purpose for courts.272 When Congress fails to articulate with sufficient clarity its substantive goals or procedural guidelines, a court has no real basis by which to assess an agency’s actions.273 In other words, the intelligible principle requirement ensures that courts will have a standard by which to review agency actions.274

In Yakus, the Court explicitly acknowledged the connection between the nondelegation doctrine and judicial review.275 There, the Court explained that invocation of the nondelegation doctrine would be justified “[o]nly if we could say that there is an absence of stan[*PG391]dards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.”276 Unlike its traditional nondelegation reasoning, which focused on the need for Congress to guide an agency’s decision making,277 the Court’s reasoning in this passage emphasizes its own more practical need for Congress’ guidance.278 That is, by providing an intelligible principle, Congress not only limits the scope of an agency’s discretion to within constitutional bounds,279 but also establishes a standard by which the Court can review the agency’s actions as well.280

The Court has connected judicial review even more readily and overtly to the “no law to apply” test281 than it has to the nondelegation doctrine.282 In Heckler, the Court explained that an agency action is “committed to agency discretion” where the governing statute is so broadly written that, “a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”283 Indeed, even the very name of the test implies that the exception will apply when there is “no law” for the court “to apply.”284

D.  The False Dilemma

Strictly speaking, the “no law to apply” exception precludes judicial review in cases where Congress has provided extremely vague and unclear statutory language.285 As such, Professor Levin worries that application of the pure “no law to apply” test as articulated in Overton Park will leave agency action unreviewable in the very situation in which judicial review is most needed.286 He writes:

[c]onsider a case in which the relevant statutes have granted the agency sweeping discretion, but the challenger claims [*PG392]the agency has exercised its discretion improperly. The challenger probably would assert this claim under section 706(2)(A) of the APA, which states that an agency action shall be set aside if found to be “arbitrary, capricious, [or] an abuse of discretion.” Under Overton Park, this type of scrutiny—known as arbitrariness review or abuse of discretion review—is simply unavailable if there is no “law to apply.”287

In other words, the “no law to apply” test allows agencies to escape judicial review precisely in cases where they already enjoy an extraordinary amount of discretion due to the vagueness of the governing statute.288

While Professor Levin’s concern is a compelling one, upon closer examination it proves to be unfounded. The “no law to apply” exception notwithstanding,289 there remains available an important check against agency arbitrariness.290 That check is, of course, the nondelegation doctrine.291 Because the “committed to agency discretion” exception is a statutory one provided by the APA, the Court has found that it precludes judicial review only of claims made under the APA.292 More to the point, the exception does not preclude constitutional claims;293 thus, it does not preclude a nondelegation claim.294

The nondelegation doctrine allows plaintiffs an indirect means by which to challenge an agency action, because a nondelegation violation negates an agency’s power to act in the first place.295 In other words, although the “no law to apply” exception precludes substantive review of an agency action,296 a court can nonetheless overturn that action by invoking the nondelegation doctrine in cases where Congress had granted the agency too much discretion.297 Indeed, because the standards for an intelligible principle and “law to apply” are essen[*PG393]tially the same,298 the nondelegation argument becomes particularly compelling in cases where the court finds there is “no law to apply.”299

Of course, the nondelegation doctrine is only as meaningful a check as the courts allow it to be.300 During the past seventy years, the courts have loosened the intelligible principle requirement to the point that it is almost meaningless, rarely finding that a statutory provision in fact lacks an intelligible principle.301 Thus, to the extent that the nondelegation doctrine is “moribund,”302 Professor Levin’s concern may indeed prove to be well-founded after all.303 If the intelligible principle requirement were applied more strictly and with greater consistency, however, it would serve as a meaningful and reliable check in cases where judicial review is precluded under the APA.304

E.  The Real Dilemma

Although the dilemma articulated by Professor Levin can be resolved on one level,305 a different, more fundamental problem looms within the resolution itself. While it is true that nondelegation can serve as a check against the seemingly unfettered authority granted an agency through the “committed to agency discretion” exception,306 bringing the two doctrines together in this way reveals the contradiction they embody. While one doctrine significantly expands agency discretion by precluding judicial review of actions governed by extremely broad delegations,307 the other mandates that such broad delegations be declared unconstitutional, thus nullifying the agency’s authority to act in the first place.308

Such a contradiction becomes even more profound in light of the fact that both nondelegation and “committed to agency discretion” inquiries are not only triggered by broadly written statutes, but [*PG394]are also analyzed under strikingly similar tests.309 As we have seen, a statute violates the nondelegation doctrine if it lacks an intelligible principle,310 and qualifies for the “committed to agency discretion” exception if it lacks “law to apply.”311 The Court’s goal under both tests is to determine the scope of the Congressional delegation.312 More specifically, when a court determines that a governing statute lacks either an intelligible principle or “law to apply,” it is determining that Congress has granted the agency an exceedingly large amount of discretion.313

Moreover, the standards for meeting both the intelligible principle and “law to apply” tests are quite easily met.314 Although the court gave teeth to the intelligible principle requirement for a short period in the mid-1930s,315 since that time the standard has become increasingly more relaxed as courts have upheld extremely vague delegations.316 The “law to apply” test is a similarly easy one to meet, with the Supreme Court stating from the outset that most statutes do in fact provide “law to apply,” and that the “committed to agency discretion” exception would apply only in “rare instances.”317 Despite the slight loosening of the “no law to apply” standard in recent cases, the test remains a difficult one to meet.318 The fact is, courts rarely find that a statute lacks an intelligible principle319 or “law to apply,”320 perhaps because either finding would dictate a rather extreme result.

In the end, the nondelegation and “committed to agency discretion” tests are essentially the same321 and generally lead to noncontradictory results. That is, in most cases the intelligible principle requirement322 or “law to apply” test323 is met, and thus the delegation is constitutional, or the subsequent agency action reviewable. The problem arises, however, in those rare cases in which a court finds that a [*PG395]delegation does lack an intelligible principle324 or “law to apply.”325 Analytically, it appears that a delegation that fails to meet one test should fail to meet the other as well. When a court finds that a delegation lacks an intelligible principle, it follows that the delegation also lacks “law to apply,” and vice versa. No court has ever made such a finding, however, or even reasoned through the issue on the record. Though it seems difficult to imagine, perhaps no court has ever had occasion or opportunity to analyze both doctrines within a single case.326

Even more problematic, however, is the logical inconsistency presented by the fact that the two doctrines, which are informed by seemingly identical tests,327 demand wildly diverging results. Under the nondelegation doctrine, an extremely broad delegation results in the nullification of the delegation itself, thus revoking the agency’s authority to act.328 Stated differently, a finding that a delegation lacks an intelligible principle results in the agency’s complete loss of ability to exercise discretion.329 The “committed to agency discretion” exception, on the other hand, dictates an entirely opposite outcome.330 Rather than resulting in the termination of agency discretion, a finding of “no law to apply” results in a discretionary windfall for the agency, shielding its actions from judicial review under the APA.331

Of course, the “committed to agency discretion” exception does not shield the agency from all forms of judicial review.332 Specifically, it does not shield the agency from review of constitutional claims,333 including nondelegation claims. Does it not follow, then, that if a court finds that a governing statute provides “no law to apply”334 it must also find that the statute lacks an intelligible principle, and thus [*PG396]violates the nondelegation doctrine?335 Do not the terms of the two doctrines dictate that what a court gives with one hand336 it must take away with the other?337

I propose that the real dilemma is this: the “committed to agency discretion” exception, as applied under the standards of the “no law to apply” test, is unconstitutional. By its own definition, the “committed to agency discretion” exception violates the nondelegation doctrine.338 If a court finds that a delegation lacks “law to apply,”339 it follows analytically that not only can the court find that the delegation lacks an intelligible principle, but that it must do so.


Given the current trend toward an ever-expanding administrative state, and given the Court’s unanimous rejection of the delegation argument in American Trucking, it seems likely that the nondelegation doctrine will continue to exist in name only, and that the intelligible principle test will grow increasingly more empty over time. Between the two extremes of dogmatic adherence and blithe indifference to the text of the Constitution lies a reasonable and legal resolution. In the interest of facilitating congressional business, the Court should continue to uphold broad delegations as it has for the past seventy years. The Court should, however, draw the line at the “committed to agency discretion” exception by recognizing that any administrative rule promulgated under the authority of a statute that lacks “law to apply” has been promulgated outside the bounds of the nondelegation doctrine, because when a statute lacks “law to apply,” it lacks an intelligible principle as well. Moreover, because delegation is a constitutional (rather than administrative) issue, it remains within a court’s authority to review the legality of the delegation even where judicial [*PG397]review of the agency action is precluded by the “committed to agency discretion” exception.

While it is true that delegation has become an indispensable tool of the legislature, and that a sudden return to enforcement of the 1935 version of the nondelegation doctrine would paralyze Congress, it remains equally true that ours is (or purports to be) a government of representative democracy. When Congress relinquishes its legislative authority to administrative agencies, and the Supreme Court permits it to do so, the legitimacy of our democracy is compromised. Such a compromise is arguably necessary in light of the volume of issues to which Congress must attend, as well as the extremely complex and technical nature of those issues. To be sure, the regulatory process is greatly benefited by the attention of expert administrators. Such a compromise is, nonetheless, troubling.

Particularly troubling is the “committed to agency discretion” exception, which not only permits Congress to relinquish its legislative authority entirely, but in fact rewards agencies with unfettered discretion in such cases by shielding their actions from judicial review. Of course, to date the Court has found very few agency actions to be “committed to agency discretion,” and even in those cases extenuating circumstances most likely account for the result. Moreover, each of these cases involved administrative adjudication rather than rulemaking, which suggests perhaps that courts are more willing to allow an agency unfettered adjudicatory power, as opposed to unfettered rulemaking power.

The possibility remains, however, that a court could find that an agency’s rulemaking action is shielded from judicial review because the governing statute provides “no law to apply.” Application of the 701(a)(2) exception in this way would result in a fundamental breakdown of the democratic process by allowing unelected administrative officials to promulgate rules free of congressional standards and of even the most deferential level of judicial review. In other words, applying the “committed to agency discretion” exception to rulemaking would allow Congress to escape accountability and allow agencies to proceed unchecked, thus leaving the American public without recourse or remedy. Such a result would not only violate the basic tenets of our Constitution, but would defy even the most rudimentary notion of democracy.


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