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In many of the canonical separation of powers cases, the Court seems to recognize that there is a non-delegation doctrine problem lurking in the background, but then goes on to resolve it on different grounds.

First, consider Humphrey’s Executor v. United States (1935). We all study that case for the proposition (contra Miers) that the President does not have absolute removal power over independent officers. But, writing for the Court, Justice Sutherland hints that there could be a problem with Congress creating the “quasi-legislative and quasi-judicial agencies,” but quickly dismisses it:

The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.

While the case primarily rejected the President’s power to remove FTC Commissioners, it tacitly upheld the legality of these quasi-legislative and quasi-judicial chimeras. A holding that the latter were unconstitutional would have certainly meant the commissioners were purely-executive, and could be fired by the President.

Second, consider United States v. Curtiss-Wright (1936). In short, Congress passed a resolution that effectively gave the President the authority to decide how to craft a criminal statute that prohibited the sale of arms to countries the President determines:

‘Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace between those countries, and if after consultation with the governments of other American Republics and with their cooperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress.

Pursuant to this authority, President Roosevelt created a proclamation identifying Bolivia and Paraguay as the specified countries.

I do hereby admonish all citizens of the United States and every person to abstain from every violation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such provisions will be rigorously prosecuted.

Curtiss-Wright challenged the indictment in SDNY, and argued that the President could not prosecute him under the authority of the proclamation, as the joint resolution amounted to an unlawful delegation of the legislative power to the President. The SDNY judge agreed, and dismissed the indictment in part. For reasons I do not entirely understand, the case was appealed directly to the Supreme Court, and skipped the 2nd Circuit.

Writing for the Court, Justice Sutherland acknowledged that this issue is raised by the appeal, and explains that if the matter was of purely domestic law, there would indeed be a non-delegation doctrine problem (recall that he was writing for 8 Justices, Justice McReynolds dissenting).

The points urged in support of the demurrers were, first, that the joint resolution effects an invalid delegation of legislative power to the executive . . . . Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of foreign affairs. The determination which we are called to make, therefore, is whether the Joint Resolution, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the law-making power. In other words, assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?

The Court avoided the issue, finding that the President did not need to rely on any delegation from Congress whatsoever. Rather, the President had the inherent authority pursuant to the Constitution. (The vitality of this holding is in serious doubt following Zivotofsky v. Kerry).

Third, in Hirabayashi v. United States (1943), the defendant asserted that the military curfew–promulgated by military officers acting on congressional statutes–violated the non-delegation doctrine.

The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.

Chief Justice Stone emphatically rejected this argument:

What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution that all legislative power granted “shall be vested in Congress” has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy.

Fourth, INS v. Chadha (1983) considered the constitutionality of the so-called one-house veto. But antecedent to the one house veto, through the Immigration and Nationality Act, Congress delegated to the President the authority to decide not to remove specific individuals. One house of Congress could then override that decision, and force the executive to remove the individual. There are serious non-delegation doctrine problems here. Justice Powell acknowledges this in his concurring opinion:

Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies

Congress is giving a legislative-type authority to the President to make exceptions to statutes. (We are far away from the “prosecutorial discretion” species of non-enforcement of today). Second, Congress has given itself the power to force the President to remove specific individuals, the quintessential executive prosecutorial power. (And, I might add a violation of the Bill of Attainder clause. Did you know that Circuit Judge Anthony M. Kennedy heard this case for the 9th Circuit, and found that the case also raised “serious bill of attainder and equal protection problems.”). The Court resolved Chadha on fairly narrow, bicameralism and presentment grounds, but the non-delegation doctrine was certainly lurking in the backdrop.

Finally, consider Clinton v. City of New York (1998). The line-item veto, much like the statute at issue in Chadha, gave the President the legislative-like power to amend statutes by choosing which ones to enforce. Like in Chadha, Justice Stevens resolves the case on the “narrow ground” based on the “finely wrought” procedure of of bicameralism and presentment. In Chadha, Congress didn’t comply with Art. I, Sec. 7 (only one house voted). In Clinton, the President didn’t comply withArt. I, Sec. 7 (his only options after presentment are to sign or veto–not cancel). Stevens acknowledges, but expressly rejects the non-delegation doctrine issue:

The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act’s cancellation provisions violate Article I, §7, of the Constitution, we find it unnecessary to consider the District Court’s alternative holding that the Act “impermissibly disrupts the balance of powers among the three branches of government.” 985 F. Supp., at 179

Justice Scalia’s dissenting opinion (which I go back and forth on) directly acknowledges the non-delegation doctrine.

As much as the Court goes on about Art. I, §7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation–generally known as substantive rulemaking. There are, to be sure, limits upon the former just as there are limits upon the latter–and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, §7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.

Though the non-delegation doctrine is one life support, it isn’t dead. The Court always seems to recognize it, acknowledge it is uncomfortable with it, and then look the other way.

I now have a copy of William Rehnquist’s 1942 High School Yearbook, The Copperdome, form Shorewood High School in Shorewood, Wisconsin. Though Rehnquist is most remembered as an Arizonan, he was born in Milwaukee. I also have a copy of Justice Scalia’s HS Yearbook and Justice Ginsburg’s College Yearbook.

It’s crazy to think he graduated barely 6 months after Pearl Harbor.

Rehnquist’s caption reads:

The favorite pastime of Bill, in and out of school, is cartooning. Lost to art however, he did become co-feature editor of the Ripples and was awarded the Quill and Scroll for his work there. A member of Student council, Hall monitors, and Hi-Y, Bill completed his list of extra curriculars.

Rehnquist was a lifelong Doodler, as revealed in his papers housed at Stanford:

The Rehnquist files do offer a few glimpses into the justice’s lighter side.

He had a habit of doodling faces in the margins of his law school notebooks, and a journal from 1948—the year he earned both his bachelor’s and master’s degrees—kept records of his poker winnings and expenditures.

Kyle Graham added:

(2) It also appears that Rehnquist liked to doodle, and in particular, that he enjoyed drawing portraits of now-obscure individuals in the margins of his notebooks. So, here’s a word of advice to you kids out there: Don’t pay attention in class, and you eventually will become Chief Justice of the United States Supreme Court.

 

Here is his photograph from Hi-Y (second row, first from the left):

Here is his photograph as a Hall Monitor (top row, third from the left).

Rehnquist also wrote a signature to Dorothy, whose yearbook I now have. It reads:

Dorothy we’ve been through 2 years of [something] writing and four of home-room together – and it’s been fun. B. Rehnqusit.

The lecture notes are here.

The Legislative Powers

• Bicameralism & Presentment (260-261).
• INS v. Chadha (261-272).
• Clinton v. City of New York (272-281).
• Read Article I, Section 8 of the Constitution (3-4).
• Enumerated Powers in Article I, Section 8 (281-283).
• Bills of Attainder (283-284).
• Note 5 – Nixon v. GSA (293-294).
• Ex Post Facto Clause (294-295).
• Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.

This is Jagdish Chadha.

Justice Louis Powell authored a concurring opinion.

Justice White dissented.

The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”

The majority opinion was authored by Justice John Paul Stevens.

Justice Anthony Michael Kennedy concurred.

Justice Stephen G. Breyer dissented, in part.

Justice Antonin Scalia dissented, in other parts.

Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.

Today the D.C. Circuit dismissed Sheriff Joe Arpaio’s challenge to DAPA on standing grounds. While the panel was unanimous in rejecting the challenge, Judge Brown concurred, opining on the merits, and to critique our current standing doctrine.

She flatly calls the President’s executive action “non-enforcement of the immigration laws,” and adds the “administration’s prosecutorial discretion meme is constitutionally problematic.” In her discussion on standing, she offers this extended discussion on the Take Care Clause.

Consider this case. The Sheriff’s claims on the merits may well raise a constitutionally cogent point. Despite the dazzling spin DHS puts on the DACA and DAPA programs, a categorical suspension of existing law—distinct from the case-by-case deferrals or targeted humanitarian exemptions cited as past precedent—complete with a broad-based work authorization, arguably crosses the line between implementing the law and making it. See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L. REV. 671, 759–61 (2014). And this is true even if the legislature aids and abets the usurpation. See generally Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, 123 Stat. 2142, 2149 (2009); Consolidated Appropriations Act of 2014, Pub. L. No. 113- 76, div. F., Tit. II, 128 Stat. 5, 251 (2014) (directing the Secretary of Homeland Security to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime,” but silent as to the propriety of categorically suspending existing removal laws). Neither the aggressive entrepreneurship of the executive nor the pusillanimity of the legislative branch can alter the fundamental constraints of the Constitution. See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781, 850–56 (2013); Price, supra, at 759–61.

Brown adds that in such cases, our current standing doctrine makes it difficult to challenge “general grievances” of egregious constitutional violations–including those of the Take Care Clause. She describes this as “underm[ining] the rule of law.”

However, although it is the denial of standing rather than its grant that undermines democratic accountability in such circumstances, concerns about the efficacy of separation of powers principles can be dismissed as “generalized grievances” no one has standing to challenge.

Separation of powers concerns surely cannot justify every application of the generalized grievance doctrine. By prohibiting abstract, general claims, the doctrine aims to ensure that the President’s “most important constitutional duty, to ‘take Care that the Laws be faithfully executed’” is not transferred to the courts. Lujan, 504 U.S. at 577 (quoting U.S. CONST. art. II, § 3). But what if the Chief Executive decides not to faithfully execute the laws? In that case our doctrine falls silent. Paying a nominal filing fee guarantees access to the federal courts, but challenge the executive’s decision to undermine the rule of law and you will likely find your fee wasted.

Brown argues against a rigid application of the “generalized grievances doctrine” for these sorts of constitutional challenges:

We should, at the very least, give careful thought before blindly applying the generalized grievance doctrine in cases challenging federal programs as ultra vires. …

Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts’ convenience over constitutional efficacy and the needs of our citizenry.

Her decision is a full-throated on Scalia’s standing as a separation-of-powers doctrine. I think Judge Brown is right on target. In the age of non-enforcement of the law, where Congress cannot meaningfully check the action, short of impeachment (user fees pay for DAPA, so defunding doesn’t work) courts should be able to consider these constitutional violations.

The Times reports that insurers are finding that their risk pools are sicker than expected, and new customers are using more services than expected. As a result, they are requesting a rate increase from the federal government–increases that need to be justified.

Hoping to avoid another political uproar over theAffordable Care Act, the Obama administration is trying to persuade states to cut back big rate increases requested by many health insurance companies for 2016.

In calling for aggressive regulation of rates, federal officials are setting up a potential clash with insurers. Some carriers said they paid out more in claims than they collected in premiums last year, so they lost money on policies sold in the new public marketplaces. After finding that new customers were sicker than expected, some health plans have sought increases of 10 percent to 40 percent or more.

Administration officials have political and financial reasons for wanting to hold down premiums. Big rate increases could undermine public support for the health care law, provide ammunition to Republican critics of the measure and increase costs for some consumers and the federal government.

Last week, I was at a workshop at SEALS about the ACA, and the question was posed whether the ACA was a landmark statute. Recall that Justice Scalia snidely compared it to the Wagner Act in his King dissent. My answer was emphatically no. It is indisputable that about 15 million people have benefited from the ACA. But what about everyone else? If this law continues to raise costs and make insurance significantly worse off for the other 200 million Americans, then its landmark status is in severe doubt. Unlike social security, which benefits everyone when they hit 65, and imposes a discreet tax on paychecks for youths, the ACA will only benefit a certain class of people–those who are poor and those are sick. I explained at the workgroup that if the premiums keep increasing, and employers throw their employees off plans once the Cadillac Tax kicks in, there will be a sustained effort to significantly change the law. No, that doesn’t mean repeal the entire ACA. But people will have an appetite to revise is to that the overwhelming majority of Americans are not made materially worse off. I don’t think the ACA has, as the President has explained, changed the American culture so that we all want to take care of everyone else, and make health insurance a fundamental right. To the contrary. The law was sold on the (unkeepable) promises that it would make insurance more affordable for everyone, without raising any premiums. (Remember bending the cost curve?).

The ACA is not a super statute. The Chief Justice made clear that court cases will not gut the law. But the political process remains ready, and able to do so.