When Delegation Begets Domination: Due Process of Administrative Lawmaking

In federal administrative law, the nondelegationdoctrine purports to forbid Congress from entrusting itsessential legislative powers to administrative agencies.The Supreme Court developed this doctrine during thenineteenth century to safeguard republican valuesembedded in the Constitution. Over time, however, theCourt has loosened the doctrine's grip, permitting federalagencies to wield broad lawmaking powers subject tominimalist "intelligible principles" established byCongress. The Court has defended this approach onpragmatic grounds, arguing that Congress cannot performits essential legislative function without entrustinglawmaking authority to administrative agencies. Whatthe Court has never adequately addressed, however, is theextent . to which congressional delegation potentiallyundermines liberty by instituting domination-thecapacity for arbitrary state action.

Although the Courtcontinues to invoke the nondelegation doctrine'srepublican ideals, it has yet to articulate a coherent legaltheory to explain how its anemic review of congressionaldelegations can be squared with the Constitution's liberty-promoting checks and balances.This Article contends that courts can reconcileadministrative lawmaking with the Constitution'srepublican design, but only if they abandon thenondelegation doctrine's antiquated separation of powers rationale. In its place, courts should focus upon dueprocess as the primary constitutional constraint oncongressional delegation. Although the link betweendelegation and due process has received only sparseattention in legal scholarship, the Supreme Court hasemployed due process analysis in a variety of casesinvolving both state and federal delegations. Threegeneral principles inform these cases: to ensure thatcongressional delegation does not beget domination,agency lawmaking must be (1) constrained by a basicsubstantive standard, (2) channeled through fair anddeliberative administrative procedures, and (3) subject topolitical accountability and judicial review.

Thissubterranean due process model challenges theconventional wisdom that due process is inapplicable toagency rulemaking. It also has a variety of important-and potentially controversial-implications for other areasof federal administrative law, including the scope ofChevron deference, the Administrative Procedure Act'sapplicability to presidential lawmaking, and theconstitutional status of federal delegations to states, tribes,private entities, and international organizations.