The Proper Role of the Nondelegation Doctrine

Ernest Gellhorn¹

The U.S. Environmental Protection Agency (EPA) has argued, in its briefs filed with the U.S. Supreme Court in Browner v. American Trucking Ass'n, that the decision of the D.C. Circuit² which stated that EPA should interpret the Clean Air Act (CAA) so as to avoid violation of the nondelegation doctrine is "novel," "unprecedented," "contrary to the purpose of the delegation doctrine," and without any "basis in [the Supreme] Court's precedents."³ In fact, however, it is EPA that has radically misread both the Court's application of the nondelegation principle and the lower court's adherence to clear precedent. All that the lower court held is that EPA's interpretations of the CAA cannot disregard the nondelegation doctrine.

EPA has acknowledged, as it must, that the nondelegation doctrine continues to be a viable principle underlying basic constitutional jurisprudence governing congressional grants of authority to administrative agencies. It cannot deny that both the Court and lower courts have adopted narrow readings of agency organic statutes where necessary to avoid constitutional invalidity under the nondelegation doctrine. Constitutional principles are frequently preserved by indirect means,⁴ but this less confrontational approach does not alter the importance or effect of the constitutional requirement.

The limited application of the nondelegation doctrine to read statutes narrowly is a reflection of the Court's prudent use of the rule.⁵ However, this restrained use does not contradict the doctrine's importance as a foundational principle governing agency authority or its continuing validity.

Thus, despite EPA's hyperbole, the only distinctive aspect of D.C. Circuit's ruling is not that the court construed the Agency's reading of the CAA as raising "serious constitutional issues," but rather that the court did not interpret the CAA for itself. The lower court recognized that, as interpreted by EPA, the CAA did not spell out the requisite standards by which EPA was to set appropriate national ambient air quality standards (NAAQS). Thus, it remanded the matter to EPA for it to decide in the first instance whether another permissible interpretation was possible and reasonable. That deferential approach is commanded by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁶ where, as here, the statute is "silent or ambiguous" on the "precise question at issue," and it allows "the agency an opportunity to extract a determinate standard on its own."⁷

Contrary to EPA's overheated rhetoric, the court below did not invalidate the CAA or interfere with the Agency's broad authority to regulate air quality. Nor did the court expand or alter the traditional use of the nondelegation doctrine when it rejected EPA's interpretation of the CAA as authorizing EPA to select any level based simply on its "policy judgment." Rather, the lower court held that EPA must first determine whether the statute can reasonably be read more narrowly before adopting such an extreme interpretation of CAA § 109.⁸ The D.C. Circuit thought such an interpretation was possible, e.g., by development, among other possibilities, of a "generic unit of harm."⁹ The statutory language does not prohibit EPA's reliance on sound decision making standards such as health-health, wealth-health and cost-benefit measures.

The ruling by the D.C. Circuit is remarkable only for its ordinariness in applying the nondelegation doctrine in a limited sphere. It holds that it is the Agency's responsibility to interpret the statute in a manner that is consistent with the principles of the nondelegation rule and to avoid unchanneled delegations of discretion to the Agency. This [31 ELR 10233] ruling is buttressed by the undisputed principle of statutory construction that statutes should be read so as to avoid constitutional confrontations.¹⁰

Applying the Nondelegation Doctrine Pragmatically and Indirectly

EPA does not dispute the core requirement of the nondelegation doctrine, that legislative authority delegated by Congress to the executive must state "intelligible principles,"¹¹ by which the agency is given a "primary standard" to guide its action.¹² It is satisfied where "Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."¹³

Despite these strong statements, the nondelegation doctrine has not been applied directly to invalidate enabling legislation since 1936. That does not mean that the doctrine has been abandoned. It is still a principled underpinning of basic separation-of-powers jurisprudence. In point of fact, its presence and indirect application have had an "important and continuing 'shadow' impact"¹⁴ on the reading and review of legislative delegations of authority to administrative agencies. This indirect application usually results in a determination either that the agency discretion isnarrower than claimed or that the claimed authority was not delegated because there was no clear statement of legislative intent to do so. Both approaches use the doctrine as an interpretive tool in order to avoid addressing constitutional objections.¹⁵

The seeds of this more limited, indirect application of the nondelegation doctrine are contained in the Court's most celebrated case on the subject, A.L.A. Schechter Poultry Corp. v. United States.¹⁶ There, the Court contrasted the uncanalized delegation of authority given the President to control wages and prices under the National Industrial Recovery Act with the broad authority given to the Interstate Commerce Commission and the Federal Radio Commission (FRC) to regulate in the public interest, convenience, or necessity and to the Federal Trade Commission (FTC) to prohibit unfair or deceptive trade practices.¹⁷ In the case of the FRC and the FTC, the delegations were upheld because the agencies' authority was restricted by specialized procedures, common-law antecedents establishing basic substantive principles, and limited coverage to specific industries or business practices.¹⁸

The primary applications of the nondelegation doctrine by the Court interpreting agency authority narrowly in order to avoid finding an unconstitutional delegation of power are:

(1) Zemel v. Rusk.¹⁹ The Court upheld the validity of area restrictions on passports after narrowing the Secretary of State's discretion by determining that the enabling act "authorizes only those passport refusals and restrictions which it could fairly be argued were adopted by Congress in light of prior administrative practice. So limited, the Act does not constitute an invalid delegation."²⁰

(2) National Cable Television Ass'n v. United States.²¹ The Court reviewed agency authority to assess operating cost fees against regulated parties at a level reflecting "direct and indirect cost[s] to the Government, value to the recipient, [and] public policy."²² The Court acknowledged that "if [the public policy terms were] read literally" the statute would permit the Federal Communications Commission (FCC) to act in the "manner of an Appropriations Committee of the House."²³ Thus, it upheld the delegation only after "reading the Act narrowly to avoid [these] constitutional problems."²⁴

(3) Industrial Union Department, AFL-CIO v. American Petroleum Institute (Benzene).²⁵ The Court overturned an interpretation of the Occupational Safety and Health Act (OSH Act) and holding that regulation of airborne carcinogens at the lowest level feasible requires a showing of "significant risk." The plurality justified this narrower interpretation as follows:

[31 ELR 10234]

[The Government's interpretation of] the statute would make such a "sweeping delegation of legislative power" that it might be unconstitutional under the Court's reasoning in [Schechter Poultry and Panama Refining]. A construction of the statute that avoids this kind of open-ended grant should certainly be favored.²⁶

(4) Touby v. United States.²⁷ The Court upheld the U.S. Attorney General's discretion to temporarily add or remove psychoactive drugs as prohibited or controlled substances only after the government conceded limits on that discretion by requiring further testing before additions could be made to the most harmful category and by acknowledging that judicial review would be available as a defense to a criminal prosecution.

(5) AT&T Corp. v. Iowa Utilities Board.²⁸ The Court reversed the FCC's reading of its statutory authority under the Telecommunications Act of 1996,²⁹ of the conditions on which local exchanges were to be open to competition. The Agency's interpretation of the statutory terms "necessary" and "impair" was unreasonable under Chevron step two because the FCC had failed to supply any "limiting standard, rationally related to the goals of the Act,"³⁰ and because it permitted private parties rather than the FCC to set the content of the law.³¹ Although the Court did not cite any nondelegation cases as support, these rationales are the twin touchstones of Schechter Poultry.³²

One influential lower court case, Amalgamated Meat Cutters & Butcher Workmen of North America v. Connally,³³ also is noteworthy for identifying restrictions within a statute whose broad delegation of authority otherwise would have been invalid. There, the court upheld non-wartime wage and price controls only after finding that the administrative authority was confined by substantive price control precedents and after incorporating other process restrictions.³⁴ The court further noted that "there is an on-going requirement of intelligible administrative policy that is corollary to and implementing of the legislature's ultimate standard and objective."³⁵

The "Clear Statement" Requirement and Nondelegation

Another, more nuanced application of the indirect nondelegation doctrine is the "clear statement" rule, which provides that enabling acts should be construed narrowly so as to avoid substantial constitutional issues absent an express congressional mandate requiring the challenged rule or practice.³⁶ The clear statement rule, like the nondelegation doctrine, is based on the principle that Congress, not just the agency, must expressly consider and speak clearly to the constitutional issue. The primary cases adopting this form of the indirect nondelegation rule are:

(1) Kent v. Dulles.³⁷ The Court interpreted the Secretary of State's passport authority narrowly to deny him the power to refuse a passport on grounds of political belief. The Court noted that it would "not readily infer that Congress gave the Secretary of State unbridled discretion…."³⁸ Citing Panama Refining Co. v. Ryan,³⁹ the Court ruled that delegated powers trenching on liberty interests—here the "right of exit"—"must be pursuant to the lawmaking functions of the Congress" and "must be adequate to pass scrutiny by the accepted tests."⁴⁰ Thus, it "construed narrowly all delegated powers that curtail or dilute them."⁴¹ However, where the administrative policy was "'sufficiently substantial and consistent' to compel the conclusion that Congress has [implicitly] approved it,"⁴² the delegation is reviewed in light of those restrictions.

(2) Greene v. McElroy.⁴³ The Court refused to find an implicit congressional delegation of authority to the U.S. Department of Defense to administer a constitutionally questionable security clearance program. The Court reasoned that "without explicit action by lawmakers, decisions of great constitutional import and effect" should not be "relegated … to administrators who, under our system of government, are not endowed with authority to decide" large constitutional [31 ELR 10235] questions.⁴⁴

(3) Rust v. Sullivan.⁴⁵ The Court held that abortion counseling regulations did "not raise the sort of 'grave and doubtful constitutional questions' that would lead us to assume that Congress did not intend to authorize their issuance. Therefore, we need not invalidate the regulations in order to save the statute from unconstitutionality."⁴⁶

This summary of decisions considering the indirect "weak form" of the nondelegation doctrine shows that the Court has not hesitated to apply it to rein in administrative discretion where the Agency has asserted that its authority gives it unbounded power to regulate. As shown further below, EPA's reading of § 109 of the CAA is just such an erroneous interpretation. It therefore should be curtailed as the D.C. Circuit demonstrated.

Establishing NAAQS Without a "Determinate Criterion"

EPA advocates a simplistic view that the nondelegation doctrine is limited to the "strong form" cases which, they point out, have not been applied to invalidate any delegation since 1936. But its brief failed to consider, much less apply, those cases that read enabling statutes narrowly or require a "clear statement" in order to avoid a direct confrontation with the nondelegation rule. Thus, EPA's argument fails to consider this Court's jurisprudence indirectly applying the nondelegation doctrine as set forth in Zemel, National Cable, Benzene, Iowa Utilities, MCI Telecommunications Corp. v. AT&T,⁴⁷ Amalgamated Meat Cutters, and Kent.⁴⁸ Further, its ipse dixit that CAA § 109 "plainly satisfies the nondelegation doctrine"⁴⁹ is no substitute for analysis. Nor are other provisions of the CAA, Congress' frequent amendment of the Act, or the applicability of internal Administrative Procedure Act (APA)-type procedures and external judicial review⁵⁰ an adequate alternative. These provisions do not give EPA guidance on the applicable criteria for setting the appropriate NAAQS levels.

Nowhere in its briefing material did EPA demonstrate how any of the "directives" in § 109 of the CAA constrict EPA's discretion in setting ozone or particulate matter (PM) levels, i.e., ozone at .08 parts per million (ppm) rather than .07 or .09 ppm. For example, EPA asserts that the "intelligible principle" standard is satisfied (in part) by the statutory requirement in § 109(b)(1)(A)-(B) that "a pollutant must 'reasonably be anticipated to endanger public health or welfare' and be emitted from 'numerous or diverse … sources'"⁵¹ in order to be regulated. While EPA correctly quoted the statutory words, it did not show how that language confines discretion in setting the level for nonthreshold pollutants. Because both ozone and PM can cause adverse health effects at any level above zero, § 109 identifies only categories of pollutants that can be regulated, not the range or basis for selecting any specific NAAQS.

In addition, the procedural and judicial review devices set forth in the CAA do not provide further guidance. If such "procedural and review restrictions" were sufficient, a statute that authorizes EPA to "go forth and do good" without regard to implementation costs would be sufficient to satisfy the nondelegation doctrine.⁵²

Remanding to EPA and Chevron

There is one element in the lower court's application of the nondelegation doctrine that could be said to be "novel" or "unprecedented." Its ruling that EPA rather than the reviewing court should, in the first instance, determine the meaning embedded in § 109 regarding the criterion(ia) that governs the establishment of NAAQS is distinctive. In all prior cases applying the indirect nondelegation doctrine a court rather than the Agency determined the meaning of the statute.⁵³ On the other hand the new direction provided by the D.C. Circuit of remanding the issue to the Agency is simply an adaptation of the indirect nondelegation doctrine to current standards of judicial review.

Under Chevron reviewing courts are to defer to reasonable Agency interpretations of statutes that do not clearly reveal Congress' intent on the precise issue in question. Just as EPA was allowed in Chevron to determine whether Congress meant that regulation of "stationary sources" of pollution allowed it the choice between measuring emissions solely by each individual source or on a plantwide basis, here it is for EPA to interpret the meaning [31 ELR 10236] of § 109 and to identify the determinate criteria consistent with Congress' intent.

The identification of the numerical equivalent or level necessary to "protect public health" with an "adequate margin of safety" (per CAA § 109) for nonthreshold pollutants is essentially a legislative task consistent with EPA's authority to issue NAAQS as legislative rules. Thus, it is particularly appropriate that the Agency be directed to fill in the meaning of this statutory standard through legislative rulemaking.⁵⁴ Under the lower court's ruling, EPA's interpretation will be upheld (if reasonable) if it provides a standard which it applied when determining the particular NAAQS.

Enforcement of the nondelegation doctrine, to require that NAAQS be consistent with Congress' stated purpose of protecting the public health with an adequate margin of safety, is consistent with the policy bases of Chevron. Not only is EPA a quasi-legislative body held accountable by the President's authority over it, but also EPA is the body best positioned to determine the range of policy choices Congress intended when it drafted § 109. Nor should there be any concern that under these circumstances the Agency's interpretation is "carved in stone." To the contrary, it can be modified as necessary to meet changing circumstances. All that the D.C. Circuit did was eliminate one of those choices, namely, EPA's interpretation that it could select particular NAAQS simply based on its "policy judgment" without regard to any determinate criterion. But once it identifies the criteria it will apply in selecting the NAAQS, those criteria can still be modified as long as the changed interpretation is plausible and is justified by cogent reasons.⁵⁵

APA Review Cannot Substitute for the Doctrine

Review under the APA's "arbitrary and capricious" test,⁵⁶ is not a substitute, as Judge Silberman contends, for application of the nondelegation doctrine to control standardless discretion. The nondelegation doctrine, as applied by the D.C. Circuit, requires that EPA determine Congress' intent when it prescribes NAAQS to protect public health with an adequate margin of safety. As long as EPA's interpretation of the congressional intentrestricts administrative discretion to understandable bounds, it will not be disturbed by the nondelegation doctrine. And as long as that interpretation by EPA is reasonable, i.e., a permissible and reasonable interpretation of § 109, it will be upheld under Chevron.

On the other hand, application of the arbitrary and capricious test under § 706(2)(A) of the APA requires that the particular NAAQS selected by EPA must reflect a reasoned decision. That is, the facts must be supported by sufficient evidence, and the inferences drawn from them, as well as the policy rationale and ultimate conclusions, must be adequately connected, explained and justified.⁵⁷ The nondelegation doctrine looks to the interpretation given the statute and asks whether the authorized administrative action is confined by intelligible standards. By contrast, arbitrary and capricious review does not look at the statutory authority and its definiteness. Rather, it examines the administrative action itself and asks whether the rule is the product of reasoned decisionmaking. Defining the authority and discretion granted by Congress is not the same thing as deciding whether agency policy choices are adequately supported by the record and reasons. The two requirements complement each other; one is not a substitute for the other.

EPA's Standardless and Unlimited Discretion

EPA argued, in the alternative, that its choices were "channeled" and "narrower than the [lower] court acknowledged."⁵⁸ It contends that its discretion was limited both by "upper" and "lower" bounds,⁵⁹ "the latest scientific knowledge on the health effects" of PM and ozone, and by the requirements of reasoned decisionmaking, i.e., "that the agency consider relevant factors, apply them to relevant facts, respond to criticisms and adequately explain its rationale."⁶⁰

But process, while important, is no substitute for substantive standards. Indeed, without some standard, judicial review is unlikely to be effective in controlling arbitrary action.⁶¹ Thus, EPA's process-based argument is meaningless. It would uphold virtually any regulatory scheme subject to the procedural requirements and traditional "arbitrary and capricious" test under the APA, regardless of the absence of any limits on the Agency's substantive authority. Because virtually all agencies are now governed by similar APA requirements,⁶² this assertion, if accepted, would nullify the nondelegation doctrine. To be sure, procedural and judicial requirements are important constraints on agency discretion if the substantive provisions, express or otherwise, include intelligible principles or standards by which the agency action is measured.⁶³ However, neither procedural nor judicial review requirements limit policy choices where no substantive criteria are identified. EPA's rulemaking record included mountains of "scientific evidence," but EPA cannot identify anything in the record that supports one NAAQS level over another.

To correct this standardless and unlimited discretion, the Court should affirm the decision of the D.C. Circuit and remand the matter to EPA for it to interpret § 109 of the CAA in light of the requirements of the nondelegation doctrine.

1. Professor of Law, George Mason University. This Dialogue is based on an amicus brief authored in part by Prof. Gellhorn which was filed in the Browner, EPA Administrator v. American Trucking Associations, Inc. (Browner) litigation on behalf of the Mercatus Center at George Mason University. The Mercatus Center is a nonprofit research and educational institution, as defined by the Code of the Internal Revenue Service, 26 U.S.C. § 501(c)(3). Its Regulatory Studies Program (RSP) is dedicated to advancing knowledge of administrative regulations and their effect on society. Through its Public Interest Comment Project, RSP submits independent analyses of proposed rules in agency rulemaking proceedings. It filed two such analyses with the U.S. Environmental Protection Agency (EPA) on the proposed national ambient air quality standards (NAAQS) for ozone and particulate matter (PM) during the comment period.

2. American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir.), modified in part on reh'g, 195 F.3d 4, 30 ELR 20119 (D.C. Cir. 1999), cert. granted sub nom. Browner v. American Trucking Ass'n, 120 S. Ct. 2003 (2000).

3. Brief of Petitioner at 18, 26 & 28, Browner v. American Trucking Ass'n, 120 S. Ct. 2003 (U.S. 2000) (No. 99-1257); see also Petitioner's Certiorari Brief at 9, Browner (No. 97-1440) (D.C. Circuit decision a "radical departure" from 65 years of consistent nonapplication of the nondelegation doctrine).

4. See, e.g., Kent v. Dulles, 357 U.S. 116 (1958).

5. The Court has applied the "strong form" of the nondelegation doctrine to overturn legislation on only three occasions. Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) (Panama Refining); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (Schechter Poultry); Carter v. Carter Coal Co., 298 U.S. 238, 310-12 (1936).

6. 467 U.S. 837, 14 ELR 20507 (1984).

7. Petitioner's Certiorari Brief at 14a, Browner (No. 97-1440).

8. 42 U.S.C. § 7409(h)(1), ELR STAT. CAA § 109(b)(1).

9. Petitioner's Certiorari Appendix at 16a (No. 97-1440).

10. See, e.g., Jones v. United States, 120 S. Ct. 1904, 1911 (2000); United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994). Such applications also are consistent with probable congressional intent because it is unlikely that the legislature intended to grant such unbridled power to a single administrator whose decisions are subject to deferential review. See FDA v. Brown & Williamson Co., 120 S. Ct. 1291, 1314 (2000) (citing Stephen G. Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986)).

11. J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).

12. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904); see Clinton v. City of New York, 524 U.S. 417, 443-44 (1998).

13. Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (quoting American Power & Light Co. v. Securities & Exchange Comm'n, 329 U.S. 90, 105 (1946)).

14. PETER STRAUSS ET AL., CASES AND COMMENTS ON ADMINISTRATIVE LAW 92 (9th ed. 1995).

15. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945, 1948-49 (1997).

16. 295 U.S. 495 (1935).

17. Id. at 538-40, 552.

18. Id. at 539-40. Fulfilling the Court's expectations, over time, the meaning of this enabling authority has been narrowed further as the problems they address were more fully understood. See, e.g., FTC, Policy Statement on Deception, 4 Trade Reg. Rep. (CCH) P13205 at 20911-12 (Oct. 14, 1983) (stating elements applicable to deception cases); Cliffdale Assocs., 103 F.T.C. 110 (1984) (same); FTC Act Amendments of 1994, 108 Stat. 1691-95 (codified at 15 U.S.C. § 41-57c) (definition of "unfair acts and practices" borrowed from FTC, Commission Statement of Policy on the Scope of Consumer Unfairness Jurisdiction, 4 Trade Reg. Rep. (CCH) P13203 (Dec. 17, 1980)).

19. 381 U.S. 1 (1965).

20. Id. at 18 (internal citation omitted).

21. 415 U.S. 336 (1974).

22. Id. at 338.

23. Id. at 341.

24. Id. at 342; see id. (quoting Schechter Poultry that "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested").

25. 448 U.S. 607, 10 ELR 20489 (1980).

26. Id. at 646, 10 ELR at 20499.

27. 500 U.S. 160 (1991).

28. 525 U.S. 336 (1999).

29. 110 Stat. 56, codified as amended 47 U.S.C. § 251.

30. 525 U.S. at 388.

31. Id. at 389.

32. Other decisions by the Court similarly have read statutes narrowly in order to avoid finding that an agency's authority includes the power to change its mandate—albeit without specifically relying upon the nondelegation doctrine. See MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 225 (1994) (reading word "modify" narrowly to reject FCC reading of tariff filing requirements as giving it sole discretion "to make even basic and fundamental changes in the scheme created" by Congress); Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421 (1987).

33. 337 F. Supp. 737 (D.D.C. 1971) (Leventhal, J., for three-judge court).

34. Id. at 758 (administrative "standards once developed limit the latitude of subsequent executive action").

35. Id. at 759. See also American Power & Light Co. v. Securities & Exch. Comm'n, 329 U.S. 90, 104 (1946) (upholding provision in the Public Utility Holding Company Act, 15 U.S.C. § 79k(b)(2), that prohibited "unduly complicated corporate structures and inequitable distributions of voting power" against a nondelegation doctrine attack because, looking at the "purpose of the Act, its factual background and the statutory context in which they appear," the Commission was given "a veritable code of rules … to follow").

36. In Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 2001 WL 15333 (U.S. Jan. 9, 2001), the Court adopted the "clear statement" approach to avoid serious questions under the Commerce Clause about the Army Corps of Engineers' attempt to regulate intrastate ponds as navigable waters.

37. 357 U.S. 116 (1958).

38. Id. at 129.

39. 293 U.S. 388 (1935).

40. 357 U.S. at 129.

41. Id.

42. Haig v. Agee, 453 U.S. 280, 306 (1981) (citing Zemel).

43. 360 U.S. 474 (1959).

44. Id. at 507.

45. 500 U.S. 173, 191 (1991).

46. Id. (citations omitted).

47. 512 U.S. 218 (1994).

48. EPA attempted to rely on Touby to support its argument that the CAA puts "'multiple specific restrictions'" on EPA's discretion. Petitioner's Brief at 25 & n. 19, Browner (No. 99-1257). But that argument was upheld in Touby only after the government greatly narrowed its interpretation of the reach of the Controlled Substances Act and conceded that further testing was required before drugs could be added to the list of controlled substances by the U.S. Attorney General and that a defendant charged with a violation could always challenge the classification despite the Act's very restricted review provisions. See Touby v. United States, 500 U.S. 160, 169-70 (1991) (Marshall, J., concurring).

49. Petitioner's Brief at 26 n.20, Browner (No. 99-1257).

50. Id. at 22-26.

51. Id. at 23.

52. See Central Forwarding, Inc. v. Interstate Commerce Comm'n, 698 F.2d 1266, 1284 (5th Cir. 1983) (rejecting expansive interpretation of the National Transportation Policy, "which paraphrased says little more than 'go forth and do good,' as a congressional grant of rulemaking authority might well amount to an unconstitutional delegation of legislative authority").

53. Iowa Utilities might be said to be an exception, because there the Court found that the 1996 Telecommunications Act was ambiguous and thus under Chevron step two was to be interpreted by the FCC. Even then, however, the Court substituted its reading for the Agency's because the Agency's reading was not "reasonable." AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 336, 392 (1999). Further, the Court not only held that the FCC had failed to identify any restrictive standard, but also that private parties, rather than the FCC, were to decide the critical policy issues. On the other hand, the Court vacated the FCC rule because it was based on an erroneous interpretation, id. at 391-92, and to allow it to identify the limiting standard in a manner consistent with the Court's reading of the Act.

54. See also Hoctor v. Department of Agric., 82 F.2d 165 (7th Cir. 1996) (Posner, C.J.) (numerical requirements involve legislative judgments which agencies are better positioned to make).

55. See Rust v. Sullivan, 500 U.S. 173, 186-87 (1991).

56. 5 U.S.C. § 706(2)(A), available in ELR STAT. ADMIN. PROC.

57. Motor Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 13 ELR 20672 (1983).

58. Brief of Petitioner at 31-34, Browner v. American Trucking Ass'n, 120 S. Ct. 2003 (U.S. 2000) (No. 99-1257).

59. Id. at 31.

60. Id. at 32.

61. Amalgamated Meat Cutters & Butcher Workmen of N.A. v. Connally, 337 F. Supp. 737, 759 (D.D.C. 1971).

62. See Dickinson v. Zurko, 527 U.S. 150 (1999).

63. See Yakus v. United States, 321 U.S. 414, 437 (1944).