A Constitutional Lawyer’s Dream: Tightening the Intelligible Principle Test

September 20, 2024

The Roberts Court has an appetite for taking decades-old, unworkable, judge-made doctrines and injecting the Constitution into the fold. The Justices no longer turn a blind eye to unconstitutional “tests” in the name of stare decisis, thereby becoming complicit in weakening the Constitution, but rather scrutinize the decisions of their brethren through the lens of the document they swore to uphold. Take for instance NCLA’s most recent Supreme Court victory, where the Court majority overturned Chevron deference last term in a case titled Loper Bright v. Raimondo/Relentless v. Department of Commerce. Judges must no longer “disregard their statutory duties” in the name of agency deference, putting to bed 40 years of bad precedent. What impractical, longstanding, barely constitutional test do lawyers dream about being clarified or tightened next term? One worthy candidate is the “intelligible principle” test at the core of the nondelegation doctrine.

Nondelegation “bars Congress from transferring its legislative power to another branch of Government.” This makes sense. Congress cannot go on sabbatical and let the Executive do the job the Framers definitively assigned to the legislature. The text of the Constitution is clear—“All legislative Powers herein granted shall be vested in a Congress of the United States[.]” The Constitution does not say “some” legislative powers shall be vested in Congress, or “when Congress feels like it,” legislative powers shall be vested in Congress—it says all.

Supreme Court nondelegation precedent mandates that when Congress delegates rulemaking power to an agency, it must provide an “intelligible principle” to which an agency must conform. This means the agency must have a standard that confines its power. However, the intelligible principle has not been strictly applied.

Without standards, or “intelligible principles,” agencies make legislative decisions. This happens when “Congress … announce[s] vague aspirations and then assign[s] others the responsibility of adopting legislation to realize its goals.” This is problematic because legislation inherently involves restricting liberties, and “[t]he Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty.”

Restrictions on liberty should happen only through consent of the governed. As Professor Hamburger has explained, “[i]ndividuals in the absence of government are not naturally subordinated to each other, but are equally free. Individuals therefore cannot be subject to anyone, including the government, without their consent. This was the key principle underlying the formation of the United States.”

The Declaration of Independence specifically posits that governments “deriv[e] their just powers from the consent of the governed[.]” Indeed, as Professor Hamburger further notes, “American colonists declared it ‘the first principle in civil society, founded in nature and reason, that no law of the society can be binding on any individual[], without his consent[,]” and Madison saw “no liberty where the legislative and executive powers are united in the same person, or body of magistrates[.]”

The nondelegation doctrine is more than just a concept that’s been largely dormant for a century. It has a moral underpinning so dear to the Founders that it needs to be revived. So how does a nondelegation violation play out in real life?

A real life violation looks like this: NCLA brought a case last year challenging Congress’s delegation of legislative authority to EPA in a case titled Choice Refrigerants v. EPA. Congress was sloppy in its drafting of the American Innovation and Manufacturing (“AIM”) Act, a statute that partially instructs EPA how to phase down a chemical used in the refrigerant industry. The statute instructed EPA on the percentage by which the chemical must be decreased each year and dictated that industry players be given an allowance to continue to use the chemical, but Congress improperly left a major component to EPA’s discretion—to whom the allowances may go. Congress essentially gave EPA a bucket of Halloween candy and said, “you may pass out only this amount of candy this year, but you can give it to whomever you wish.” No boundary confines EPA’s power, meaning no intelligible principle exists that keeps EPA’s power in check.

Part of the problem has been that litigants overgeneralize the nondelegation doctrine, latching on to the fact that only two Supreme Court cases have ever held that a statute failed to provide an “intelligible principle” to guide a regulator. Because so few statutes have been struck down for loose standards, litigants such as EPA claim that “the Supreme Court approves congressional delegations of law-making authority based on no more than vague policy platitudes”—an untrue statement and misconception about the nondelegation doctrine.

In pursuit of sharpening this doctrine and eliminating excuses for allowing broad, shapeless delegations to stand, the Court hopefully will consider taking a chisel to the “intelligible principle” test and fortifying its contours. Congress cannot be allowed to persist in slipshod drafting that undermines its core constitutional duty of legislating, just as courts cannot turn a blind eye to these impermissible delegations based on century-old precedent that merely dictates that agencies be “directed to conform.” The intelligible principle test has been stretched too thin, and it’s time to respect the Founders and Framers’ explicit directives.