Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine

*University of Virginia School of Law, J.D. 2020. This paper has benefitted greatly from a host of folks, without whom it would not have been written in the first place, much less published. Specifically, thanks go to Ray Gans and Andrew Kintner for their helpful, encouraging, and thoughtful feedback from the earliest stages of putting pen to paper. Additionally, to the members of the Virginia Law Review for their thorough and insightful revisions throughout the editing process. All the credit is theirs—all the errors mine.Show More

Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in congressional delegation of legislative authority is certainly one part of the equation. Since the early twentieth century, the Supreme Court has employed the so-called “intelligible principle” test to determine when Congress unconstitutionally delegates authority. In the century since the inception of the “intelligible principle” test, however, the Court has stricken down only two statutes as such unconstitutional delegations of legislative authority. For better or worse, this lax approach to delegation has permitted administrative agencies to gain increasingly broad authority.

Some believe, however, that a dissent authored by Justice Neil Gorsuch in a recent Supreme Court case, Gundy v. United States, marked the beginning of the end for the “intelligible principle” test and, thereby, the modern administrative state. This Note takes on the latter concern. It argues that a return to the traditional view of the nondelegation doctrine advocated by Justice Gorsuch does not compel the unwinding of the modern administrative state. It does so by applying the traditional tests to two modern statutes, both of which have received sustained and recent constitutional doubt under even the permissive “intelligible principle” test. This Note demonstrates that both statutes likely would survive nondelegation scrutiny under the traditional tests. Taking these statutes as an apt—albeit imperfect—proxy for the administrative state, this Note thus demonstrates that a return to a traditional nondelegation doctrine would not result in the sea-change in administrative law that some have predicted.

Introduction

Administrative agencies are an integral part of the modern American legal landscape.¹ 1.See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”).Show More For better or worse, the so-called “administrative state” has continued to grow from its inception in the New Deal era forward into the twenty-first century.² 2.See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day).Show More Today, administrative agencies oversee how we vote,³ 3.52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission).Show More how we retire,⁴ 4.42 U.S.C. § 901 (2012) (Social Security Administration).Show More the food we eat,⁵ 5.21 U.S.C. § 393 (2012) (Food and Drug Administration).Show More the shows we watch on television,⁶ 6.47 U.S.C. § 151 (2012) (Federal Communications Commission).Show More and much more. While one would be hard-pressed to pin down any one entity responsible⁷ 7.Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way.Show More for the growth of this “fourth branch,” at least part of the credit lies with the judicial branch. Courts repeatedly have played a role in granting increased authority to this new “Leviathan,”⁸ 8.This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”).Show More tacitly approving of its continued expansion in case after case.

One way in which the judiciary has acquiesced in the administrative state’s growth is through the judiciary’s reluctance to invoke the nondelegation doctrine as one means by which to rein in the authority granted.⁹ 9.Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”).Show More In 1928, the Supreme Court articulated what has become the modern standard for determining when Congress goes too far in its delegation of authority to administrative agencies—what is referred to as the “intelligible principle” test.¹⁰ 10.J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).Show More On only two occasions since that time, both in 1935, has the Supreme Court stricken down a duly enacted statute on the grounds that the law was an unconstitutional delegation of legislative authority.¹¹ 11.Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).Show More Since then, the Court has routinely upheld broad delegations of authority to administrative agencies, citing the “intelligible principle” test as a pro-forma step leading to the delegation’s inevitable approval.¹² 12.See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test).Show More This has led many who are skeptical of the constitutionality of the increasingly large role agencies play in the government to mourn that the nondelegation doctrine is nothing more than a dead letter.¹³ 13.See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”).Show More

That hand-wringing aside, the tide is turning on the nondelegation doctrine. A recent dissent by Justice Gorsuch in Gundy v. United States served as a strong signal that the nondelegation doctrine may yet have life in it.¹⁴ 14.See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power).Show More In his dissent, Justice Gorsuch argues that the “intelligible principle” test is without doctrinal or constitutional mooring and should be put to rest.¹⁵ 15.Id. at 2138–40.Show More His dissent also articulates three “traditional tests” that, in his view, represent the true underpinnings of what the nondelegation doctrine ought to be employed to do.¹⁶ 16.Id. at 2135–37, 2139.Show More With the momentum of an ideologically shifting Court behind him, his dissent sparked hand-wringing of a different sort—over the practical implications of waking the nondelegation doctrine after its nearly century-long slumber.¹⁷ 17.Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”).Show More This Note addresses, among other things, those concerns.

To be sure, a single dissenting opinion ordinarily wouldn’t sound the death-knell of a doctrine that has been a staple of constitutional jurisprudence for nearly a century. Nonetheless, it is not difficult to count to five votes in support of Justice Gorsuch’s position in Gundy. Chief Justice Roberts and Justice Thomas both joined the dissent, obviously indicating that they endorse its reasoning.¹⁸ 18.See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting).Show More Justice Alito concurred in the judgment only.¹⁹ 19.Id. at 2130–31 (Alito, J., concurring in the judgment).Show More But his vote to uphold the result in Gundy was driven by a desire not to “single out” the statute at issue in Gundy “for special treatment.”²⁰ 20.Id.Show More And if a majority of the Court were willing to engage in a wholesale revision of the nondelegation doctrine, Justice Alito “would support that effort.”²¹ 21.Id.Show More Neither Justice Kavanaugh nor Justice Barrett participated in the Gundy decision, leaving their views less known. In the time since Gundy, however, Justice Kavanaugh has indicated that he agrees with Justice Gorsuch’s position.²² 22.See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari).Show More In a statement respecting the denial of certiorari in a companion case to Gundy, Justice Kavanaugh wrote that “Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”²³ 23.Id.Show More Thus, while Justice Gorsuch’s dissent was just that—a dissent—it seems likely that his opinion now carries the support of a majority of the current members on the Court.²⁴ 24.This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position.Show More That reality raises the stakes for what the opinion means for the administrative state, which is what this Note aims to address.

This Note analyzes the constitutional and pragmatic issues implicated by Justice Gorsuch’s opinion. Part I addresses the fundamental principle of separation of powers. That part provides a brief constitutional overview of how the delegation of legislative authority to non-legislative actors implicates that basic constitutional precept. Part II provides a brief overview of the Court’s decision and Justice Gorsuch’s dissent in Gundy. Part III explores the constitutional and doctrinal bases for the “traditional tests” Justice Gorsuch articulates in his Gundy dissent. That Part, by explaining the constitutional and precedential frameworks for those tests, defends the soundness of Justice Gorsuch’s premise. Part IV then applies the “traditional tests” to two specific statutes, which received nondelegation scrutiny beginning nearly a century ago, and continue to be scrutinized as recently as cases decided within the past year. In its application of the “traditional tests” to these constitutionally dubious statutes, this Note argues that Justice Gorsuch’s proposed “revolution” of nondelegation jurisprudence would not result in the sea-change that some have predicted. Rather, its analysis shows that the limits these “traditional tests” impose on delegation, while meaningful, are not impossible to satisfy. Indeed, the tests leave Congress ample flexibility to govern effectively without forsaking the boundaries imposed by the separation of powers. At bottom, it demonstrates, in contrast with the plurality’s fears articulated in Gundy, that Justice Gorsuch’s traditional nondelegation approach does not compel the alarmist conclusion that “most of Government is unconstitutional.”²⁵ 25.Gundy, 139 S. Ct. at 2130.Show More

1. * University of Virginia School of Law, J.D. 2020. This paper has benefitted greatly from a host of folks, without whom it would not have been written in the first place, much less published. Specifically, thanks go to Ray Gans and Andrew Kintner for their helpful, encouraging, and thoughtful feedback from the earliest stages of putting pen to paper. Additionally, to the members of the Virginia Law Review for their thorough and insightful revisions throughout the editing process. All the credit is theirs—all the errors mine. ↑
2. See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”). ↑
3. See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day). ↑
4. 52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission). ↑
5. 42 U.S.C. § 901 (2012) (Social Security Administration). ↑
6. 21 U.S.C. § 393 (2012) (Food and Drug Administration). ↑
7. 47 U.S.C. § 151 (2012) (Federal Communications Commission). ↑
8. Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way. ↑
9. This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”). ↑
10. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”). ↑
11. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). ↑
12. Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935). ↑
13. See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test). ↑
14. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”). ↑
15. See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power). ↑
16. Id. at 2138–40. ↑
17. Id. at 2135–37, 2139. ↑
18. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”). ↑
19. See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting). ↑
20. Id. at 2130–31 (Alito, J., concurring in the judgment). ↑
21. Id. ↑
22. Id. ↑
23. See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari). ↑
24. Id. ↑
25. This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position. ↑
26. Gundy, 139 S. Ct. at 2130. ↑
27. Mistretta v. United States, 488 U.S. 361, 372 (1989). ↑
28. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825). ↑
29. Yakus v. United States, 321 U.S. 414, 425 (1944) (alteration in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)). ↑
30. See The Federalist No. 47, at 301 (James Madison) (stating that, if the Constitution failed to protect against a breakdown in the separation of powers, “no further arguments would be necessary to inspire a universal reprobation of the system”). ↑
31. Id. ↑
32. The Federalist No. 37, at 228 (James Madison). ↑
33. The Federalist No. 47, at 301 (James Madison). ↑
34. See The Federalist No. 51, at 321–22 (James Madison) (“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.”). ↑
35. The Federalist No. 47, at 301 (James Madison); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825) (holding that Congress may not constitutionally delegate legislative powers); Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1, 8 (1994) (“[T]he abdication of power and its corresponding responsibilities is as serious a problem as aggrandizement.”). ↑
36. U.S. Const. art. I, § 1 (emphasis added). ↑
37. Wayman, 23 U.S. at 42–43. ↑
38. Field v. Clark, 143 U.S. 649, 693–94 (1892) (quotation omitted). ↑
39. Id. at 694 (quotation omitted). ↑
40. Id. at 693–94 (quotation omitted). ↑
41. Wayman, 23 U.S. at 42–43. ↑
42. 276 U.S. 394 (1928). ↑
43. Id. at 409. ↑
44. See, e.g., Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 474 (2001) (“The scope of discretion § 109(b)(1) [of the Clean Air Act] allows is in fact well within the outer limits of our nondelegation precedents.”); Mistretta v. United States, 488 U.S. 361, 371–79 (1989) (holding that, “[a]lthough Congress ha[d] delegated significant discretion,” the Court had “no doubt” that the delegation in the sentencing guidelines to the Sentencing Commission was “sufficiently specific and detailed to meet constitutional requirements”); Loving v. United States, 517 U.S. 748, 751, 771–74 (1996) (finding “no fault” in the delegation to the President the authority to define aggravating factors that permit the death penalty in military capital cases); Touby v. United States, 500 U.S. 160, 162, 165–66 (1991) (discussing the intelligible-principle test and holding that “even if greater congressional specificity” were “required in the criminal context,” legislative delegation of authority to the Attorney General under § 201(h) of the Controlled Substances Act would still pass constitutional muster); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 221 n.7 (1986) (rejecting the assertion that the discretionary authority granted by Multiemployer Pension Plan Amendments Act of 1980 did not constitute “a reasonable means of achieving congressional aims,” and that it provided an “intelligible principle” to guide the delegee); Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (stating that 19 U.S.C. § 1862(b), or Section 232 of the Trade Expansion Act, “easily fulfills” the intelligible-principle test); Lichter v. United States, 334 U.S. 742, 774–87 (1948) (applying the intelligible-principle test and concluding the purpose and background of the Renegotiation Act established a “sufficient meaning” for the phrase “excessive profits” so as to make the Act “a constitutional definition of administrative authority and not an unconstitutional delegation of legislative power”). ↑
45. Panama Refin. Co. v. Ryan, 293 U.S. 388, 431–33 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935). ↑
46. 293 U.S. 388 (1935). ↑
47. 295 U.S. 495 (1935). ↑
48. See generally Schechter Poultry, 295 U.S. at 519–51 (failing, in its 32-page opinion, to invoke the phrase “intelligible principle”). ↑
49. See Panama Refin., 293 U.S. at 420–30 (providing the “intelligible principle” language from J.W. Hampton as just one of many examples in which “the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend”). ↑
50. See Gundy v. United States, 139 S. Ct. 2116, 2138–40 (2019) (Gorsuch, J., dissenting) (arguing that the “intelligible principle” phrase was used in J.W. Hampton as a way of “explain[ing] the operation of [other] traditional tests,” and describing it as a “passing comment” that has been “divorc[ed] . . . from its context,” and an “isolated phrase” that has been “treat[ed] . . . as if it were controlling”). ↑
51. See supra note 43. ↑
52. See Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J., dissenting) (“This mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.”); id. at 2131 (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”). ↑
53. See supra notes 18–21 and accompanying text. ↑
54. See supra notes 22–23 and accompanying text. ↑
55. Gundy, 139 S. Ct. at 2121–22 (plurality opinion). ↑
56. Id. at 2122. ↑
57. 34 U.S.C. § 20913(d) (2012). ↑
58. Gundy, 139 S. Ct. at 2132 (Gorsuch, J., dissenting) (“The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast.”). ↑
59. Id. (providing examples of how the “pendulum swung” on retroactive application of SORNA depending on who happened to be serving as Attorney General at the time); but see id. at 2122 (plurality opinion) (“The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. That rule has remained the same to this day.”) (citation omitted). ↑
60. Id. at 2123–24 (plurality opinion). ↑
61. Id. (emphasis added). ↑
62. Id. at 2125. ↑
63. See id. at 2129 (reframing the constitutional question as such: “The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible?”). ↑
64. Id. ↑
65. Id. at 2124. ↑
66. For the plurality’s proposition, see id. at 2129. For Justice Gorsuch’s disagreement, see id. at 2131–32 (Gorsuch, J., dissenting). ↑
67. Id. at 2131–32 (Gorsuch, J., dissenting) (quoting Wayne A. Logan, The Adam Walsh Act and the Failed Promise of Administrative Federalism, 78 Geo. Wash. L. Rev. 993, 1000 (2010)). ↑
68. Id. at 2132. ↑
69. This exposes what was really at issue in Gundy—it was a case that turned on statutory interpretation. See e.g., Aditya Bamzai, Commentary, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 Harv. L. Rev. 164, 166 (2019) (stating that Gundy “turned largely on the plurality’s narrowing construction of a statutory scheme”). The plurality was content to impose a limiting construction to avoid the delegation question, while Justice Gorsuch was willing to take on the broader issue. See also Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting) (“Most everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we have outlined, it would present ‘a nondelegation question.’” (quoting id. at 2123–24 (plurality opinion))). ↑
70. Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting). ↑
71. Id. at 2135–39. ↑
72. See id. at 2136–37 (citing both Wayman v. Southard, 23 U.S. (10 Wheat.) 31, 43 (1825) and The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 388 (1813) as articulating these standards). To be sure, it does not seem as though the third category comes explicitly from any one case. See id. at 2137. Nonetheless, Justice Gorsuch asserts that both Wayman and Aurora could have appropriately been decided on these grounds. Id. Further, it seems obvious that separation of powers concerns are not implicated when Congress gives another branch discretion over matters properly within the scope of that branch’s powers. See, e.g., David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1260 (1985) (“Legislation that leaves the Executive Branch with discretion does not delegate legislative power where the discretion is to be exercised over matters already within the scope of executive power.”). In other words, nondelegation is implicated only when Congress abdicates its own constitutionally assigned power, not when it empowers another branch to act within that branch’s proper sphere. ↑
73. While the tests are interrelated, the satisfaction of any test is sufficient to insulate a statute from a nondelegation challenge. Which test applies depends on the unique circumstances presented by the delegation at issue in a particular case. See infra Part III. ↑
74. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman, 23 U.S. at 43). ↑
75. Id. ↑
76. Id. at 2137. ↑
77. See id. at 2137–38 (Gorsuch, J., dissenting). ↑
78. Id. at 2139 (“There’s a good argument, as well, that the statute in J. W. Hampton passed muster under the traditional tests.”). ↑
79. Id. at 2145 (“Nor would enforcing the Constitution’s demands spell doom for what some call the ‘administrative state.’ . . . Respecting the separation of powers forecloses no substantive outcomes.”). ↑
80. See supra note 17. ↑
81. Gundy, 139 S. Ct. at 2137–39 (Gorsuch, J., dissenting). ↑
82. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”). ↑
83. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)). ↑
84. See Bamzai, supra note 68, at 177 (describing Justice Gorsuch’s approach as “a set of formal rules to identify those cases that pose a nondelegation problem”). ↑
85. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). ↑
86. By this, Chief Justice Marshall meant areas that did not implicate “powers which are strictly and exclusively legislative.” Wayman, 23 U.S. at 42–43. ↑
87. Id. at 43. For another early example of the “fill up the details” test, see, e.g., Hannibal Bridge Co. v. United States, 221 U.S. 194, 205 (1911) (“All that the act did was to impose upon the Secretary the duty of attending to such details as were necessary in order to carry out the declared policy of the Government.”). ↑
88. Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (citing Wayman, 23 U.S. at 43)). ↑
89. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted). ↑
90. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904). ↑
91. Id. ↑
92. Id. ↑
93. Id. ↑
94. Red “C” Oil Mfg. Co., 222 U.S. at 394. ↑
95. Buttfield, 192 U.S. at 496; see also St. Louis, Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281, 286–87 (1908) (holding that permitting the American Railway Association to set “the standard height of draw bars for freight cars,” which was binding on all railways engaged in interstate commerce, was not an unconstitutional delegation under Buttfield, presumably due to the fact that this was a detail that was constrained by the greater purpose, or primary standard, of the legislation—safety). ↑
96. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“Accordingly, we look to the statute to see . . . whether Congress in authorizing ‘codes of fair competition’ has itself established the standards of legal obligation . . . or, by the failure to enact such standards, has attempted to transfer that function to others.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“Moreover, the Congress . . . may establish primary standards, devolving upon others the duty to carry out the declared legislative policy”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). ↑
97. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (citations omitted). ↑
98. See Buttfield, 192 U.S. at 496. ↑
99. See Wayman, 23 U.S. at 43. ↑
100. See J.W. Hampton, 276 U.S. at 406; Buttfield, 192 U.S. at 496. To be sure, Congress’s requirement to provide “defined limits” for the Executive cannot be a high bar and remain consistent with the Court’s precedent. For example, in the statute at issue in Buttfield, Congress provided that the Secretary of the Treasury was to consider “purity, quality, and fitness for consumption” in making its determination. Id. at 494. Further, that statute required the Secretary to appoint a seven-member board of tea “expert[s]” who were to “prepare and submit to [the Secretary] standard samples of tea” and provide recommendations for the “standards of purity, quality, and fitness for consumption” of imported teas. An Act To Prevent the Importation of Impure and Unwholesome Tea, 29 Stat. 604, 605 (1897). Conversely, it is argued here that Congress could not have constitutionally stated a purpose of improving the quality of tea, and then empowered the Secretary to ban all tea of inferior quality, with no exposition as to how the Secretary was to make that determination. While the constraints provided in the Act at issue in Buttfield were admittedly not severe, they nonetheless confined the authority of the Secretary to some extent. ↑
101. See Schechter Poultry, 295 U.S. at 530, 541–42 (stating that the relevant provision of the Act represents an unconstitutional delegation of authority in part because it “supplies no standards”). ↑
102. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912); Buttfield, 192 U.S. at 496; St. Louis, Iron Mountain & S. Ry. Co., 210 U.S. 281, 287 (1908). ↑
103. 11 U.S. (7 Cranch) 382 (1813). Many early cases employed the “conditional fact-finding” test. See, e.g., Miller v. Mayor of New York, 109 U.S. 385, 394 (1883) (“The efficiency of an act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate.” (citing South Carolina v. Georgia, 93 U.S. 4, 13 (1876)); Field v. Clark, 143 U.S. 649, 694 (1892) (“The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”) (quoting Locke’s Appeal, 72 Pa. 491, 498 (1873)). ↑
104. See Aurora, 11 U.S. at 386 (argument of Joseph R. Ingersoll) (stating that making the revival of a law contingent on the President’s proclamation is the equivalent of giving “that proclamation the force of law”); see also Union Bridge Co. v. United States, 204 U.S. 364, 378 (1907) (describing both the statute at issue and the Court’s analysis in Aurora). ↑
105. Aurora, 11 U.S. at 388. ↑
106. See Field v. Clark, 143 U.S. 649, 682–83 (1892) (describing the statute at issue in Aurora). ↑
107. 204 U.S. 364, 387 (1907); see also, J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“[A]uthorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed, have constantly been sustained.”); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“[T]he Constitution has never been regarded as denying to Congress the [ability to] . . . leav[e] to selected instrumentalities . . . the determination of facts to which the policy as declared by the legislature is to apply.”) (citing Panama Refin., 293 U.S. at 421). ↑
108. Union Bridge Co., 204 U.S. at 387. ↑
109. Id. at 366 (quoting An Act Making Appropriations for the Construction, Repair, and Preservation of Certain Public Works on Rivers and Harbors, and for Other Purposes, 30 Stat. 1121, 1153–54 (1899)). ↑
110. Id. ↑
111. Id. at 385. ↑
112. Id. at 386–88. ↑
113. See supra note 95 (citing to the Court’s discussion of conditional fact finding in both Schechter Poultry and Panama Refining). ↑
114. Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935). ↑
115. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (describing the three “findings” that the President was required to make under the Recovery Act in order to exercise his discretion: (1) find that the proposed trade or industrial code did not inequitably restrict admission to membership in industrial associations; (2) that the proposed code did not promote monopolies; and (3) that the proposed code would “tend to effectuate the policy of” the Act (quoting National Industrial Recovery Act, Pub. L. No. 73-67 § 3, 48 Stat. 195, 196 (1933)). ↑
116. Id. ↑
117. Id. ↑
118. Id. at 537–42. ↑
119. See, e.g., Union Bridge Co. v. United States, 204 U.S. 364, 386–88 (1907). ↑
120. See Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935). ↑
121. See Schechter Poultry, 295 U.S. at 538. ↑
122. For example, the statute at issue in Buttfield required only that the Secretary of Treasury act with the purpose of excluding the lowest quality of tea. While it could conceivably be argued that this finding of quality constituted a finding of fact, that is not how the Court approached the statute. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904) (finding the statute to simply provide the Secretary of the Treasury with the necessary standard to “effectuate the legislative policy declared in the statute”). ↑
123. Indeed, it is hard to imagine how Congress would condition an action upon the finding of fact if there were no declared policy. For example, in Union Bridge, what facts would have been relevant to the Secretary of War in determining which bridges must be removed or altered if the policy of promoting the free travel upon navigable waters was not clearly stated? See Union Bridge, 204 U.S. at 366. ↑
124. This conclusion is bolstered by the fact that the Court in Union Bridge also determined that Congress had previously laid down a “general rule” that the administrator was acting within. See id. at 386. ↑
125. Gundy v. United States, 139 S. Ct. 2116, 2137 (Gorsuch, J., dissenting). ↑
126. See id. (citing no direct authority for this proposition). ↑
127. See, e.g., Loving v. United States, 517 U.S. 748, 768 (1996) (“And it would be contrary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority.”). ↑
128. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”) . ↑
129. 299 U.S. 304, 319–20 (1936); see also Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring in the judgment) (explaining that, when the President acts within an area of executive discretion and in accordance with an express or implied congressional authorization, “his authority is at its maximum” and such an act in accordance with a congressional delegation would be afforded “the widest latitude of judicial interpretation”). ↑
130. Curtiss-Wright, 299 U.S. at 319–22. ↑
131. See Schoenbrod, supra note 71, at 1260. ↑
132. Id. at 1260–61. ↑
133. Field v. Clark, 143 U.S. 649 (1892). ↑
134. Id. at 1262–63; Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting) (“Wayman itself might be explained by the same principle as applied to the judiciary: Even in the absence of any statute, courts have the power under Article III ‘to regulate their practice.’”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)). ↑
135. The statute at issue in this case was about a trade embargo against the British. See The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83 (1813). ↑
136. Clark, 143 U.S. 649, 691 (1892). ↑
137. Wayman, 23 U.S. at 43 (1825). As Justice Gorsuch notes in his dissent, courts possess this power under Article III, regardless of statutory authorization. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting). ↑
138. See The Federalist No. 78, at 465 (Alexander Hamilton) (“The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated.”). ↑
139. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting). ↑
140. See Schoenbrod, supra note 71, at 1260–61. ↑
141. Id. at 1260. ↑
142. Or, in other words, the point at which the “intelligible-principle” test got its legs. See supra note 43 (citing cases, beginning in 1948, when the Court began earnestly applying the “intelligible principle” test). ↑
143. Gundy, 139 S. Ct. at 2130 (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”). ↑
144. It bears mentioning that any selection of statutes would be an imperfect proxy for the administrative state as a whole (as would any individual field). The purpose of this Note is not to prove that every statute that delegates authority to an administrative agency would be upheld under the traditional tests. Rather, it is intended to show that even these broad delegations are likely constitutional under the traditional tests, indicating that much of the administrative state would fare similarly. While a statute-by-statute analysis might be productive, such an analysis is beyond the scope of this Note. Thus, the selected statutes are apt, if imperfect, vessels by which to gauge the impact of Justice Gorsuch’s dissent. ↑
145. Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 447 (5th Cir. 2020) (internal quotation marks and citation omitted), petition for cert. filed, (U.S. Dec. 28, 2020) (No. 20-850). ↑
146. Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1344 (Ct. Int’l Trade 2019) (stating that Section 232 “invite[s] the President to regulate commerce by way of means reserved for Congress”). ↑
147. Id. at 1346–52 (Katzmann, J., concurring dubitante). ↑
148. 21 U.S.C. § 387a–1 et seq. (2018); Pub. L. No. 111-31, 123 Stat. 1776, 1784 (2009). ↑
149. 21 U.S.C. § 301, et seq. (2018); Pub. L. No. 75-717, 52 Stat. 1040 (1938); see Big Time Vapes, 963 F.3d at 438. ↑
150. Big Time Vapes, 963 F.3d at 440. An “e-liquid” is a liquid mixture that is used in electronic vaping products. The liquid is aerosolized by the vaping device and inhaled by the user. See id. at 439 n.11. ↑
151. Deeming Tobacco Products to Be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, 28,974­–75 (May 10, 2016). ↑
152. Big Time Vapes, 963 F.3d at 438–440. ↑
153. Id. at 446. ↑
154. The plurality opinion, plus Justice Alito’s concurrence. ↑
155. Big Time Vapes, 963 F.3d. at 447. ↑
156. Id. (cleaned up). ↑
157. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26 (2000). ↑
158. 21 U.S.C. § 387 et seq. (2018). ↑
159. Id. § 387a(b). ↑
160. Id. (emphasis added). ↑
161. Id. § 387(20). ↑
162. Id. § 387d. ↑
163. Id. § 387e(b), (g). ↑
164. Id. § 387j(a)(1)–(2), (c)(1)(A). ↑
165. Id. § 387f(d), (a), 387c(a)(8)(B)(i). ↑
166. Id. § 321(rr)(1). ↑
167. Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, at 28,976 (May 10, 2016). ↑
168. Id. ↑
169. 21 U.S.C. § 387a(b) (2018). ↑
170. Id. ↑
171. Id. ↑
172. Appellants’ Principal Brief at 45, Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020) (No. 19-60921), 2020 WL 957184 (emphasis added), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850). ↑
173. Id. at 58. ↑
174. Gundy v. United States, 139 S. Ct. 2116, 2130 (2019). ↑
175. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). ↑
176. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted). ↑
177. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904). ↑
178. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 3, 123 Stat. 1776, 1781–82 (2009). While not codified at 21 U.S.C. § 387 et seq., the Fifth Circuit in Big Time Vapes nonetheless relied on it to discern a congressional purpose. As the court put it, “Section 3 is part of the positive law that ran the gauntlet of bicameralism and presentment. That’s a far cry from ‘the sort of unenacted legislative history that often is neither truly legislative nor truly historical.’” Big Time Vapes, 963 F.3d at 444 n.24 (cleaned up) (quoting BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting)). The distinction between statutory and legislative history is beyond the scope of this Note. Suffice it to say, when Congress enacts a statute by bicameralism and presentment, the entirety of that statute is fair game. See Loos, 139 S. Ct. at 906 (Gorsuch, J. dissenting) (describing statutory history as “the record of enacted changes Congress made to the relevant statutory text over time, the sort of textual evidence everyone agrees can sometimes shed light on meaning”). ↑
179. § 3(2), 123 Stat. at 1781. ↑
180. § 3(5)–(9), 123 Stat. at 1782. ↑
181. § 3(3), 123 Stat. at 1782. ↑
182. Buttfield, 192 U.S. at 496. ↑
183. Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380 (1912). ↑
184. Id. at 394. ↑
185. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (stating that it is “frequently necessary to use officers of the Executive Branch, within defined limits”) (emphasis added). To be sure, Congress could express a clear purpose but provide no guidance on how the delegee was to achieve that purpose. Such a delegation, while it may contain a “sufficient primary standard” would almost certainly be an unconstitutional delegation of legislative authority. For example, suppose Congress passed a law to combat homelessness. In that hypothetical law, there are three sections: The first section creates a “Homelessness Commission”; the second section instructs the Homelessness Commission to “by the year 2024, reduce homelessness in America by 98%, by whatever means the Commission deems appropriate”; and the third section defines “homelessness.” The purpose here is exceptionally clear, and yet it is uncontroversial that providing no guidance as to how to achieve that purpose would be constitutionally problematic. ↑
186. Id. (emphasis added). ↑
187. Tariff Act of 1922, ch. 356, § 315, 42 Stat. 858, 941–43 (1922). ↑
188. See Hampton, Jr., & Co. v. United States, 14 Ct. Cust. App. 350, 361–67, T.D. 42030 (1927). ↑
189. It is illustrative because Justice Gorsuch stated that the statute at issue in J.W. Hampton likely “passed muster under the traditional tests.” Gundy v. United States, 139 S. Ct. 2116, 2139 (2019) (Gorsuch, J., dissenting). ↑
190. Hampton. Jr., & Co., 14 Ct. Cust. App. at 362. ↑
191. Id. at 361–63. ↑
192. Id. at 362. ↑
193. Id. ↑
194. Id at 361–62. ↑
195. Id. at 362. ↑
196. Id. ↑
197. Big Time Vapes, Inc. v. FDA 963 F.3d 436, 445 (5th Cir. 2020) (citing 21 U.S.C. § 321(rr)(1)), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850). ↑
198. 21 U.S.C. § 387a(b) (2018) (subjecting all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco to TCA regulation). ↑
199. Id. § 387d(a). ↑
200. Id. § 387e(i)(1). ↑
201. Id. § 387j(a)–(c). ↑
202. Big Time Vapes, 963 F.3d at 446. ↑
203. 21 U.S.C. § 387a(b). ↑
204. 19 U.S.C. § 1862 (2018). ↑
205. 376 F. Supp. 3d 1335, 1337, 1345 (Ct. Int’l Trade 2019), cert. denied, 141 S. Ct. 133 (June 22, 2020) (No. 19-1117). ↑
206. Id. at 1346–47 (Katzmann, J., concurring dubitante) (“While acknowledging the binding force of [Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)], with the benefit of the fullness of time and the clarifying understanding borne of recent actions, I have grave doubts.”). ↑
207. This statute has been the focus of much criticism for the breadth of discretion it confers on the President. See, e.g., Paul Bettencourt, Note, “Essentially Limitless”: Restraining Administrative Overreach Under Section 232, 17 Geo. J.L. Pub. Pol’y 711, 726–27 (2019) (analyzing Section 232 under a nondelegation framework, using the AIIS case as an example, but claiming that challenging the statute on a nondelegation basis would be “unlikely to succeed” unless “the Court revisits its jurisprudence”). ↑
208. 19 U.S.C. § 1862 (2018). ↑
209. Id. § 1862(b)(1)(A). ↑
210. Id. § 1862(b)(3)(A). ↑
211. Id. ↑
212. Id. § 1862(c)(1)(A). ↑
213. Id. § 1862(c)(1)(A)(ii). ↑
214. Id. § 1862(c)(1)(B), (c)(2). ↑
215. Id. § 1862(d). ↑
216. Id. ↑
217. Id. This is significant because it empowers the President to effectively conflate “economy” with “security.” ↑
218. Proclamation No. 9705, 83 Fed. Reg. 11,625, at 11,626 (Mar. 8, 2018). ↑
219. Proclamation No. 9704, 83 Fed. Reg. 11,619, at 11,620 (Mar. 8, 2018). ↑
220. Prior to the Trump administration, a President acted pursuant to Section 232 on six occasions, the last of which occurred in 1986. See Rachel F. Fefer et al., Cong. Rsch. Serv., Section 232 Investigations: Overview and Issues for Congress 4, App. B (2020). In contrast, under the Trump administration there were five investigations. Id. at app. B. Two of those investigations resulted in the imposition of tariffs, two are still in process, and one seemingly expired with no action due to a missed deadline. See id. at App. B. (providing a table of Section 232 investigations dating back to 1963); see also David Lawder, Trump Can No Longer Impose ‘Section 232’ Auto Tariffs After Missing Deadline: Experts, Reuters (Nov. 19, 2019), https://www.reuters.com/article/us-usa-trade-autos/trump-can-no-longer-impose-section-232-auto-tariffs-after-missing-deadline-experts-idUSKBN1XT0TK [https://perma.cc/D5QY-X7ZX] (stating that the statutory deadline for the Section 232 investigation being used to impose tariffs on foreign-made cars and auto parts passed with no action, forfeiting the administration’s opportunity to utilize such tariffs). ↑
221. See Fefer, supra note 219, at 7 (noting that in his Memo on proposed Section 232 tariffs, Secretary of Defense James Mattis, while agreeing that “imports of foreign steel and aluminum based on unfair trading practices impair the national security,” ultimately disagreed with the President’s broad-brushed imposition of tariffs in this instance, as “U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production”) (quoting Letter from James N. Mattis, Secretary of Defense, to Wilbur L. Ross Jr., Secretary of Commerce (2018), https://www.commerce.gov/sites/default/files/depart‌ment_of_defense_memo_response_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/M2FB-U63M]; see also Editorial Board, The National Security Tariff Ruse, Wall St. J. (Mar. 12, 2018), https://www.wsj.com/articles/the-national-security-tariff-ruse-1520897310 [https://perma.cc/V9UP-VYCY] (describing the Trump administration’s use of Section 232 to justify tariffs as “dubious,” because “[n]ot even the Pentagon buys” the notion “that steel and aluminum imports make the U.S. military vulnerable”); John Brinkley, Trump’s National Security Tariffs Have Nothing To Do with National Security, Forbes (Mar. 12, 2018) https://www.forbes.com/sites/johnbrinkley/2018/03/12/trumps-national-security-tariffs-have-nothing-to-do-with-national-security/?sh=197f0c6e706c [https://perma.cc/WZE3-AYNP] (arguing that “[t]he national security argument [on behalf of the tariffs] is a sham and everyone knows it,” as “[n]ot even Defense Secretary James Mattis bought it”). ↑
222. See Brinkley, supra note 220 (“It’s obvious that [the President] used the national security argument as a pretense for something he wanted to do, but for which he had no other legal justification.”). ↑
223. See Fefer, supra note 219, at 12 (quoting Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States, 83 Fed. Reg. 12,106 (Mar. 19, 2018)). ↑
224. Andrea Shalal, U.S. Handling of Tariffs Raises Appearance of ‘Improper Influence’: Watchdog, Reuters (Oct. 30, 2019) (quotation omitted), https://www.reuters.com/article/us-usa-trade-steel/u-s-handling-of-tariffs-raises-appearance-of-improper-influence-watchdog-idUSKBN1X92KP?feedType=RSS&feedName=topNews [https://perma.cc/5XPA-33J6]. ↑
225. Fefer, supra note 219, at 12–15; see also Shalal, supra note 223 (explaining that the Commerce Department’s inspector general found a lack of transparency surrounding the Trump Administration’s tariff policy). ↑
226. 426 U.S. 548, 558–60 (1976). ↑
227. Proclamation No. 4341, 40 Fed. Reg. 3965, 3966 (Jan. 27, 1975); see also Algonquin, 426 U.S. at 554–55 (observing that President Ford’s Proclamation targeted the importation of petroleum and derivative products on the basis of national security concerns). ↑
228. Algonquin SNG, Inc. v. Fed. Energy Admin., 518 F.2d 1051, 1062 (D.C. Cir. 1975) (“[W]e do not say that Congress cannot constitutionally delegate, accompanied by an intelligible standard, such authority to the President; we merely find that they have not done so by this statute. We reach no conclusion on any delegation issue raised by the parties.”). ↑
229. Id. ↑
230. Id. ↑
231. Algonquin, 426 U.S. at 570–71. ↑
232. Id. at 559. ↑
233. Id. at 558–60. ↑
234. Id. at 559. ↑
235. 19 U.S.C. § 1862(b) (2018) (preconditioning the President’s action on the determination of the Secretary of Commerce). ↑
236. Id. § 1862(a). ↑
237. Algonquin, 426 U.S. at 559. ↑
238. Id. (quoting 19 U.S.C. § 1862(b)). ↑
239. Id. ↑
240. See 19 U.S.C. § 1862(d) (providing, among other factors, that the President should, “without excluding other relevant factors” consider factors such as “unemployment,” “effects resulting from the displacement of any domestic products by excessive imports,” and “the investment, exploration, and development necessary to assure” growth of domestic industries pertinent to national security). ↑
241. See Algonquin, 426 U.S. at 559. ↑
242. 376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019). ↑
243. Id. at 1344–45. ↑
244. Id. at 1345 (citation omitted). ↑
245. Not to be confused with Second Circuit Senior Judge Robert Katzmann. ↑
246. Am. Inst. for Int’l Steel, 376 F. Supp. at 1347 (Katzmann, J., concurring dubitante). ↑
247. Id. at 1346. Judge Katzmann previously concluded that the power at issue, imposing duties and tariffs, “is a core legislative function.” Id. ↑
248. Id. at 1351–52. ↑
249. Id. at 1352. ↑
250. Id. ↑
251. Certainly, those who would claim that Justice Gorsuch’s position makes “most of Government . . . unconstitutional” would seem to agree with this statement. See Gundy v. United States, 139 S. Ct. 2116, 2130 (2019) (plurality opinion). ↑
252. See Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1344–45 (majority opinion) (concluding that although, among other concerns, Section 232 “bestow[s] flexibility on the President and seem[s] to invite the President to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach,” “such concerns are beyond this court’s power to address, given the Supreme Court’s decision in Algonquin”); see also id. at 1352 (Katzmann, J., concurring dubitante) (“[I]t is difficult to escape the conclusion that [Section 232] has permitted the transfer of power to the President in violation of the separation of powers.”). The conclusion that Section 232 presents a nondelegation “close call” is not undercut by the cursory analysis provided by the Court in Algonquin. To be sure, the Court there stated that Section 232 “easily fulfills” the intelligible-principle test. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976). That statement notwithstanding, as stated above, the Court did not meaningfully analyze the delegation claim in Algonquin. See supra Subsection IV.B.ii. ↑
253. See supra Section III.B. ↑
254. Cf. Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1352 (Katzmann, J., concurring dubitante) (providing brief recognition of “the flexibility that can be allowed the President in the conduct of foreign affairs”). ↑
255. Id. at 1346 (Katzmann, J., concurring dubitante). ↑
256. 19 U.S.C. § 1862(a) (2018). ↑
257. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). ↑
258. See supra Section III.C. ↑
259. 19 U.S.C. § 1862(c)(1)(A). Indeed, the Court in Algonquin stated as much. Fed. Energy Admin v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (“[Section 232] establishes clear preconditions to Presidential action.”). ↑
260. Compare A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (holding that the conditions precedent to presidential action in the Recovery Act were more appropriately described as “a statement of an opinion as to the general effect” that the proposed regulations would have) with The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83, 388–89 (1813) (holding that delegating the authority to the President to reinstate a law based on the factual determination of Great Britain’s ceasing to violate the neutral commerce of the United States was constitutionally permissible). ↑
261. 19 U.S.C. § 1862(c)(1)(A). ↑
262. See, e.g., Aurora, 11 U.S. at 382, 387–89 (reviewing the statutory scheme that “ma[d]e the revival of an act depend upon a future event”); Union Bridge Co. v. United States, 204 U.S. 364, 366–67 (1907) (requiring a finding of “an unreasonable obstruction to the free navigation” of navigable waters). ↑
263. See supra note 114 (listing the precedent findings the President was required to make under the Recovery Act at issue in Schechter Poultry). ↑
264. 19 U.S.C. § 1862(d). ↑
265. Schechter Poultry, 295 U.S. at 538 (citations omitted). ↑
266. Id. ↑
267. See 19 U.S.C. § 1862(a), (b), (c). ↑
268. Schechter Poultry, 295 U.S. at 538. ↑
269. Meshal v. Higginbotham, 804 F.3d 417, 443 (D.C. Cir. 2015) (Pillard, J., dissenting). ↑
270. See, e.g., Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577–87 (2011) (providing an in-depth analysis of how to best define “national security”). ↑
271. Id. at 1580. ↑
272. 19 U.S.C. § 1862(a); see also, Bettencourt, supra note 206, at 715 (noting the “broad discretion” granted to the “executive branch’s interpretation of ‘national security’” under Section 232) (citation omitted). ↑
273. See Schoenbrod, supra note 71, at 1260. ↑
274. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936). ↑
275. See, e.g., Abraham D. Sofaer, Presidential Power and National Security, 37 Presidential Stud. Q. 101, 120 (2007) (“The Constitution allocates powers over national security to all the branches that enable each to affect national policy.”); Schoenbrod, supra note 71, at 1260–61 (describing the confluence of executive and legislative power in the “war and foreign affairs” context). ↑
276. Sofaer, supra note 274, at 120. For example, Congress holds the power to declare war, U.S. Const. art. I, § 8, while the President, as Commander in Chief, exercises simultaneous military and national security powers. U.S. Const. art. II, § 2. ↑
277. Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence.”). ↑
278. To be sure, an analysis of executive powers is a topic of ongoing debate and is well beyond the scope of this Note. See, e.g., Sofaer, supra note 274, at 120–22 (explaining the debate over those powers which are exercised exclusively by the President and which powers are shared with other branches). ↑
279. Id. at 120. ↑
280. U.S. Const. art. I, § 8; see also Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1346 (Ct. Int’l Trade 2019) (Katzmann, J., concurring dubitante) (“[T]he power to impose duties is a core legislative function.”). ↑
281. Schoenbrod, supra note 71, at 1260. ↑
282. This, clearly, does not require a finding that the administration’s actions under Section 232 discussed previously are permissible. Those actions remain subject to challenge on the grounds that the President has stepped beyond the bounds of Section 232 and is not acting in the interest of national security. That analysis encompasses an entirely different set of questions and is not addressed by this Note. ↑
283. Gundy v. United States, 139 S. Ct. 2116, 2145 (2019) (Gorsuch, J., dissenting). ↑
284. Id. at 2130 (plurality opinion). ↑

285. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)). ↑