Rule of Law

Originalism Watch, Sixth Circuit Edition Part II: Judge Thapar Calls for the Supreme Court to “Breath[e] New Life” Into the Nondelegation Doctrine

Back in April, my colleague, David Gans, observed that Sixth Circuit Judge John Bush’s concurrence in Preterm Cleveland v. McCloud, an abortion case, was a prime example of what we at CAC call Fauxriginalism—an incomplete and inaccurate reading of the text and history of the Constitution that leads to conservative outcomes.  Last week, a Sixth Circuit judge struck again in a case called Tiger Lily, LLC v. HUD.  This time, it was Judge Amul Thapar, urging the Supreme Court to “breath[e] new life” into the nondelegation doctrine—a move that would not only be at odds with constitutional text and history, but also undermine the ability of the federal government to function effectively.

In Tiger Lily, the Sixth Circuit was considering the legality of the Centers for Disease Control and Prevention’s (CDC’s) federal eviction moratorium, a measure designed to curb the spread of COVID-19 among some of the most vulnerable people in this country.  Judge Bush wrote the opinion of the court, invalidating the moratorium.  Judge Bush’s majority opinion was wrong as a matter of statutory interpretation.  His cramped reading of a statute that authorizes the Director of the CDC to implement such “measures, as in his judgment may be necessary” “to prevent the spread of communicable diseases from one State or possession into any other State or possession” led him to conclude that the CDC exceeded its statutory authority when it implemented the moratorium.

But Judge Bush’s colleague, Judge Thapar, penned an even more troubling opinion this time.  Judge Thapar wrote a concurrence asserting that the government’s interpretation of the statute violates the nondelegation doctrine and urging the Supreme Court to “consider breathing new life into the doctrine . . . [i]n light of the original meaning, history, and structure of our Constitution.”

Judge Thapar’s concurrence represents a misreading of that original meaning, history, and structure.  As CAC explained in its brief filed in this case, and as I elaborated upon in a recent blog post, the Founding generation did not believe in strict limitations on Congress’s authority to delegate its power to make laws to other branches of government.  Indeed, to the extent that there were any limits on Congress’s power to delegate broad, discretionary authority to executive branch officials at the Founding (some scholars argue that there were none), those limits were modest and more closely aligned with the Supreme Court’s flexible test for assessing the validity of congressional delegations than the more stringent limit on delegation that Judge Thapar asks the justices to adopt.

Judge Thapar’s concurrence begins with a basic recitation of our tripartite system of government, consisting of a legislative branch, an executive branch, and a judicial branch.  No one disputes the value of this carefully balanced constitutional structure.  But the fact that the Framers called for a separation of the basic functions of government hardly speaks to the question of whether one branch can voluntarily delegate a portion of its authority to another branch without disrupting that balance.  And it certainly doesn’t answer the more important and nuanced question of how much delegation is too much.

To answer this question, scholars have looked to early examples of congressional delegations and discovered that the first Congresses experimented with expansive delegations of legislative power in the realms of patents, remittances, military pensions, military development, policing federal territories, managing the national debt, land sales, disaster relief, revenue collection, direct taxes, public subsidies, and quarantine authority, to name a few.  And, at a more fundamental level, as Professor Kevin Arlyck recently explained in the Georgetown Law Review, “for members of the early Congress, building the administrative capacity needed to fulfill the new national government’s critical responsibilities was not a quest to trace out hard constitutional boundaries between the branches,” rather, “[i]t was a dynamic, improvisational, and only partially successful experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the nation faced.”

Judge Thapar’s concurrence ignored all of this history, including the specific examples of Founding-era delegations of legislative authority highlighted in CAC’s amicus brief.  Instead, he relied on a single Founding-era debate on the question of which branch of government would have the authority to establish post roads to conclude that, essentially, any delegation is too much delegation.

The paucity of historical evidence in Judge Thapar’s opinion is on its own enough to raise questions about its seriousness as an originalist take.  But even close examination of the one example he does cite suggests flaws in his logic.

The Constitution vests the power “[t]o establish Post Offices and post Roads” in Congress.  Judge Thapar is right that an early bill seeking to replace Congress’s enumerated routes with the provision “by such route as the President of the United States shall, from time to time, cause to be established,” was ultimately voted down in 1791.  But some members’ constitutional nondelegation objections were not what ultimately led to the defeat of the bill.  Rather, as several scholars have meticulously documented, the resulting law represented a political compromise: Congress kept for itself the power to establish post roads, but it delegated to the executive branch the power to extend post roads and determine the location of post offices.  Certainly, if delegating the authority to establish the locations of post roads was unconstitutional, the same would be true of delegating the authority to establish the locations of post offices.  Yet Congress had no problem doing the latter.  Judge Thapar neglected to mention this important fact in his concurrence.

Judge Thapar ends his concurrence by emphasizing the value of vesting lawmaking power in duly elected congressional representatives, as opposed to unelected “bureaucrats embedded in the executive branch.”  He proclaims, “[w]hile landlords and tenants likely disagree on much, there is one thing both deserve: for their problems to be resolved by their elected representatives.”

The irony of this statement is that it wholly ignores the fact that Congress itself wrote the statute delegating authority to resolve those “problems” to the CDC.  In other words, our duly elected representatives made the initial judgment that the CDC would be best equipped to make the “judgment” about which measures are necessary “to prevent the spread of communicable diseases from one State or possession into any other State or possession.”  Thus, by delegating its authority to administrative agencies, Congress is not abdicating its authority, as Judge Thapar insinuates.  Rather, our representatives are exercising their authority to make laws that vest decision-making authority where they believe that authority belongs.  In this case, that was with the CDC.

Whatever is driving Judge Thapar’s call for the Supreme Court to revive the nondelegation doctrine, it’s not to be found in the text, history, and structure of the Constitution.