31 ELR 11151 | Environmental Law Reporter | copyright © 2001 | All rights reserved

The Nondelegation Doctrine: Fledgling Phoenix or Ill-Fated Albatross?

The author is Visiting Associate Professor, Tulane School of Law (2001) and Associate Professor, University of Toledo College of Law. Thanks go to Robert Adler, Martin LaLonde and Joseph Slater for their comments, and to Harrison (Hap) Dunning and the Rocky Mountain Mineral Law Foundation for the invitation to share a draft of this Article at the Eleventh Institute for Natural Resources Law Teachers. This Article follows up on issues raised in Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 ARIZ. ST. L.J. 941 (2000).

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Prior to the New Deal, the American judiciary was highly suspicious of regulatory legislation, which was viewed as upsetting the common law's support for private property interests and freedom of contract. Laissez-faire policies reigned. Regulatory statutes were vulnerable to invalidation under a variety of constitutional theories, including substantive due process, federalism and, for a brief period of time, delegating legislative authority to the executive branch, a constitutional offense under separation-of-powers principles.

Since the advent of the modern administrative state and the Administrative Procedure Act (APA) of 1946,¹ the "nondelegation" doctrine has been, for all practical purposes, a dead letter in the federal arena. Even the most broad-sweeping authorizations have barely been questioned. Instead, the delegation of complex regulatory details to executive agencies is generally recognized as promoting efficient and effective government. So long as Congress provides some "intelligible principles" to guide the agency in its implementation of a statute, delegations have not raised constitutional concerns.² Courts simply review agency interpretations of open-ended delegations as a matter of administrative law under the familiar standard from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,³ upholding the regulation so long as the agency's construction is reasonable.⁴

Yet in the waning days of the 20th century, the U.S. Court of Appeals for the D.C. Circuit seemingly opened a new chapter in administrative law by resurrecting the nondelegation doctrine in American Trucking Ass'n v. U.S. Environmental Protection Agency.⁵ There, the court held that the U.S. Environmental Protection Agency (EPA) had usurped legislative prerogatives in promulgating national ambient air quality standards (NAAQS) pursuant to the Clean Air Act (CAA).⁶ According to the court, EPA lacked a "determinate criterion for drawing lines" to justify its selection of NAAQS for ozone (O₃) and particulate matter (PM) (smog and dust), leaving the agency "free to pick any point between zero and a hair below the concentrations yielding London's Killer Fog."⁷ Even though EPA had considered a full range of data regarding the standard "requisite to protect public health" with an "adequate margin of safety," as directed by this detailed, intricate statute, the court concluded that it had illicitly acted in a legislative capacity.

The U.S. Supreme Court accepted petitions for certiorari from both EPA and industry representatives, and it reversed the D.C. Circuit on the nondelegation issue in February 2001.⁸ In issuing its opinion, the Court passed up a number of opportunities to render intelligible the law on this subject. It could have declared the doctrine utterly defunct, lending credence to pre-American Trucking speculation that it had long been dead in all but name. Conversely, it could have clarified its test for reviewing nondelegation challenges by adopting either the more stringent form of review embraced by the D.C. Circuit or some other analytical formula. Instead, the Court stuck with the long-standing but frustratingly opaque "intelligible principles" test, finding that the CAA adequately constrained EPA's discretion by requiring standards "requisite to protect public health" from the adverse effects of air pollution.⁹

The opinion failed to resolve the ambiguities inherent in the existing test, but it did shed two not insignificant rays of light onto the darkness of the nondelegation doctrine. First, only Congress can satisfy the doctrine's demands; an agency cannot remedy a constitutional deficiency in the legislation by adding intelligible constraints on its own discretion through regulation.¹⁰ In addition, the Court explained that neither Congress nor the agency is required to specify an upper limit on the stringency of the standard selected, putting an end to the D.C. Circuit's penchant for demanding exact parameters in the implementation of statutory directives.¹¹

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The American Trucking opinions and other cases demonstrate that the conventional intelligible principles test is an exceedingly crude instrument that falls far short of advancing the legitimate objectives of the nondelegation doctrine. It seems likely that few if any legislative enactments would offend this standard, in view of the wide latitude given by the Court to the CAA and other statutes that delegate broad discretion to an administrative agency. Even if they did, it is not at all clear that such enactments actually delegate too much power, or power that is somehow more disruptive of our tripartite constitutional structure, than other regulatory statutes, just because they lack clearly defined linguistic formulae.

In spite of the Court's reluctance to revisit the merits of the conventional test, it did provide an opening for an alternative approach. The American Trucking opinion notes, almost in passing, that the degree of acceptable discretion "varies according to the scope of the power congressionally conferred,"¹² indicating that more rigorous review could be demanded in some cases while little or no review might occur in others, depending on the context or nature of the power. Based on this and the Court's past precedents, a set of delegation canons can be constructed as an alternative to the nebulous "intelligible principles" test. Prof. Cass Sunstein has suggested that canons of construction already operate as nondelegation principles in the federal courts.¹³ Such canons require a clear expression of congressional intent before a delegatee could, for example, intrude on fundamental rights or state sovereignty. This theory is supported by the American Trucking opinion, and can be readily expanded to include "pro-delegation" canons, which would require less exacting specifications in areas where concerns about abuse of power, overreaching, and factionalism are minimal, and where the need for swift expert action is great. Broad legislative grants of executive power to preserve public lands and resources might be one such area, defeating the claims asserted in a number of challenges to recent national monument designations.

Pro- and nondelegation canons would move beyond legislative nomenclature, focusing more closely on the nature of the power conferred and the actual effects of the delegation at issue. As a result, canons would better advance the nondelegation doctrine's purposes of promoting accountability in decisionmaking and a balance of governmental powers than does the intelligible principles test.

I. The Evils of Delegation: "Much Ado About Nothing?"¹⁴

A. The Constitutional Basis and Early Years of Nondelegation Jurisprudence

The U.S. Constitution specifically provides that "all legislative powers … shall be vested in a Congress of the United States…."¹⁵ In short, Congress possesses the authority to make laws of general applicability.¹⁶ Meanwhile, executive power—the power to enforce the law—is held by the president,¹⁷ and the power to review the activities of the other two branches, in the context of cases or controversies, is vested in the judiciary.¹⁸

A primary reason for this constitutional separation of legislative, executive, and judicial powers is to provide checks and balances against the capture of any one branch by another.¹⁹ The division of power promotes accountability, deters arbitrary or tyrannical rule, and protects citizens from factionalism or manipulation by interest groups.²⁰

Separation of powers, "an indeterminate political theory" with no precise blueprint for implementation, generally forbids any one branch from interfering with the constitutional functions of another branch.²¹ It does not, however, require that the legislative, executive, and judicial spheres be completely divided and distinct.²² More to the point, there is no explicit prohibition on the delegation of legislative powers in the constitutional text.²³ For a tripartite government to be "workable," Congress cannot be the only entity allowed to "make a rule of prospective force …. 'Congress must be permitted to delegate to others at least some authority it [31 ELR 11153] could exercise itself.'"²⁴ As a "necessary and proper" means of effectuating its enumerated constitutional powers,²⁵ Congress has long spoken in broad-brush terms, leaving the details of execution to the executive and its agents, with judicial review as a safeguard against abusive or arbitrary action.

Nonetheless, congressional delegations to executive agencies are sometimes criticized as eroding the separation of powers among the branches. Agency officials are not elected and are, therefore, arguably less accountable to the public than the legislative branch, yet they frequently wield policymaking and rulemaking authority.²⁶ Thus, agencies have been characterized by some as an unauthorized, unconstrained "fourth branch of government."²⁷

Not surprisingly, courts treated most regulatory statutes with a good deal of suspicion when they first appeared on the legislative scene.²⁸ Administrative regulations protective of workers and consumers, adopted pursuant to broad legislative grants of power, were viewed as "unprincipled interest group transfers,"²⁹ in derogation of the laissezfaire principles that served as a baseline for judicial review throughout the industrial age of the 19th and early 20th century. Because such transfers were contrary to the common law, and because agencies themselves were not especially well-favored, regulatory statutes were interpreted very narrowly throughout the Lochner v. United States³⁰ era, often defeating the protections offered to the statutory beneficiaries.³¹

Despite judicial resistance, regulatory programs did not fade quietly away. Governmental involvement in the daily affairs of its citizenry through executive agencies became more prevalent in the 1930s, in light of increasing evidence of market failures: unemployment skyrocketed; farmers had no markets for meager crops eked out of desiccated soils; factories exploited child labor and emitted pollution at will. President Franklin D. Roosevelt's Administration proposed sweeping legislative initiatives in an effort to resuscitate the economy, protect workers, and conserve natural resources. In many instances, agencies were given broad policymaking authority that combined all three governmental functions, legislative, executive, and adjudicatory, with only the most open-ended directives to prevent "unfair" practices or to act in the "public interest."³² Ironically, such unbounded delegations lent themselves to manipulation by self-interest groups, factionalism, and abuse of power, some of the very problems to be redressed by New Deal agencies.

The nondelegation doctrine is intended to counter these tendencies. It is founded on John Locke's observation that "the power of the legislative, being derived from the people by a positive voluntary grant … , can be no other than what the positive grant conveyed, which being only to make laws, and not to make legislators."³³ In theory, the doctrine promotes accountability and the balance of powers by requiring that "important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will."³⁴ Meanwhile, it advances the rule of law and guards against arbitrary decisionmaking and abuse of power by ensuring that adequate substantive and procedural safeguards exist to protect those affected by governmental action.³⁵

The task of discerning whether a delegation is legislative in nature is by no means an easy one. Courts faced with this issue have observed that the line between the delegation of legislative power and of administrative authority is "some-what indistinct"³⁶ —an extreme understatement. To assist in the inquiry, the Supreme Court has long searched for an "adequate" legislative standard or "intelligible principle" to guide agency action,³⁷ requiring that Congress itself makes the law and delegates only "the authority to make policies and rules that implement its statutes."³⁸ The test has changed very little over time, but the stringency of its application has waxed and waned significantly. The Court initially upheld legislation against nondelegation challenges so long as Congress included some standards to define the scope of the delegatee's authority to regulate.³⁹ In one early [31 ELR 11154] case, United States v. Grimaud,⁴⁰ the Court rejected a challenge to the Organic Act of 1897, which provided a general directive to the Secretary of Agriculture to "insure the objects" of national forest reservations by regulating "their occupancy and use" and preserving them from destruction.⁴¹ According to the Court, the Act, which set forth the legislative purposes along with sufficient guidance on how to effectuate those purposes, provided the Secretary with the power not to legislate but simply "to fill up the details."⁴²

By the early 1930s, the search for intelligible principles had become more intensive. Along with substantive due process and an overarching concern for federalism, the nondelegation doctrine served as a vehicle for invalidating progressive New Deal legislation. However, only two Supreme Court opinions explicitly relied on the doctrine to strike down statutory provisions. Both cases involved the National Industrial Recovery Act (NIRA), an early New Deal statute designed to alleviate unemployment, increase commercial and consumer spending, and promote conservation.⁴³ In Schechter Poultry Corp. v. United States,⁴⁴ the Court found that a provision allowing the president to enforce "codes of fair competition" proposed by industrial firms, so long as they did not promote monopolies, gave him "virtually unfettered" discretion and thus was an unconstitutional delegation of legislative power.⁴⁵ That same year, in Panama Refining Co. v. Ryan,⁴⁶ a provision allowing the president to prohibit the interstate transport of petroleum in excess of amounts allowed by state law was invalidated. The Court found that Congress had provided no standards other than "the general aims of rehabilitation, correction and expansion"; thus, NIRA had impermissibly given the president "unlimited authority to determine the policy and to lay down the prohibition … as he may see fit."⁴⁷

In response, President Roosevelt proposed a bill to expand the bench from 9 to 15, allowing him to appoint Justices more favorable to his policies. He dropped his "court packing" plan, however, when one Justice "switched" and cast his vote in favor of Washington's minimum wage law in West Coast Hotel v. Parrish.⁴⁸ Subsequently, in National Labor Relations Board v. Jones & Laughlin Steel Corp.,⁴⁹ the Court upheld a key New Deal program, the National Labor Relations Act, rejecting both U.S. Commerce Clause and nondelegation arguments.⁵⁰ By 1937, the Lochner era was over, and the New Deal administrative state was in full swing.

Broad delegations were regularly upheld in the ensuing years. Statutes authorizing the Federal Communications Commission to regulate broadcast licensing "as the public interest, convenience, or necessity requires,"⁵¹ the Price Administrator to fix "generally fair and equitable" commodities prices,⁵² the Bituminous Coal Commission to set prices yielding a "fair return,"⁵³ and the War Department to recover "excessive profits" earned from military contracts,⁵⁴ all withstood nondelegation challenges. To the extent that the statutory standards were less than definitive, the Court has been willing to find "meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear."⁵⁵

B. Supreme Court Review of Post-New Deal Delegations

No post-New Deal Supreme Court decision has invalidated a statute under the nondelegation doctrine, and a wide variety of statutory provisions have been found to supply intelligible [31 ELR 11155] enough principles. The Court laid out a flexible approach to the doctrine in Mistretta v. United States,⁵⁶ concluding that Congress need not select the method of policy implementation involving the least possible administrative discretion⁵⁷; in a complex modern society, "Congress simply cannot do its job absent an ability to delegate power under broad general directives."⁵⁸ Only if the Court "could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible … to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose …."⁵⁹ Indeed, by demanding more precise standards of legislative delegations, courts themselves usurp congressional prerogatives, threatening the balance of powers.⁶⁰

In Mistretta, the Court found that Congress had provided sufficient guidance for the U.S. Sentencing Commission to develop sentencing guidelines for the federal courts.⁶¹ "Although Congress granted the [Sentencing] Commission substantial discretion in formulating guidelines," the congressional directives for issuing guidelines provided "more than merely an 'intelligible principle' or minimal standards."⁶² The Court concluded that the development of sentencing guidelines "for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate."⁶³

A number of modern statutes have survived review in spite of delegating powers that reasonably could be thought most appropriate for congressional resolution. The Court has rejected a nondelegation challenge to the Uniform Code of Military Justice,⁶⁴ allowing the president to define aggravating factors for the imposition of the death penalty in military capital cases.⁶⁵ A provision of the Controlled Substances Act, allowing the U.S. Attorney General to temporarily schedule substances that posed an "imminent hazard to the public safety," thereby criminalizing them, has also been upheld.⁶⁶ A congressional delegation of the power to assess user fees, effectively "taxing" owners of pipelines, has passed constitutional muster as well.⁶⁷

This more lenient form of nondelegation review is not solely the product of post-New Deal attitudes regarding agencies and regulatory programs. It also reflects the availability of procedural safeguards, such as judicial review, provided either by the statute in question or the more generally applicable APA.⁶⁸ In Schechter Poultry, the Court explicitly distinguished the offending provision of NIRA from the Federal Trade Commission Act, upheld in part because it called for special procedures before "unfair methods of competition" could be determined.⁶⁹ In post-APA cases, the opportunity for meaningful judicial review has been cited as a factor in rejecting nondelegation arguments.⁷⁰ State courts have followed suit, upholding broad delegations if there were adequate procedural protections, in one case declaring:

The requirement of expressed standards has, in most instances, been little more than a judicial fetish for legislative language, the recitation of which provides no additional safeguards to persons affected by the exercise of the delegated authority. [Rather, the] procedure established for the exercise of the power furnishes adequate safeguards to those who are affected by the administrative action.⁷¹

In most cases, if legislative objectives are provided so that agencies are not making law out of whole cloth and courts can provide meaningful judicial review, separation of powers and accountability can be assured, and persons affected by administrative action are less likely to experience biased or arbitrary decisions.

Nonetheless, there have been a few signals that at least one or two Justices would embrace the strict form of [31 ELR 11156] nondelegation review seen in the early New Deal cases. In Industrial Union Department v. American Petroleum Institute (the Benzene case),⁷² the Court remanded a standard limiting workplace exposure to benzene to the Occupational Safety and Health Administration (OSHA). The Occupational Safety and Health Act (OSH Act)⁷³ required OSHA to set exposure limits for toxic materials that would "most adequately assure, to the extent feasible … that no employee will suffer material impairment" of health.⁷⁴ The plurality opinion surmised that, had "feasibility" been the only limitation on agency discretion, OSHA could impose substantial costs on industry without any risk-based justification, and that such a "sweeping delegation of legislative power" might violate the nondelegation doctrine.⁷⁵ The Court avoided the constitutional issue, however, by finding that OSHA's discretion was adequately curbed by the OSH Act's definition of safety standards as those standards necessary or appropriate to provide safe or healthful employment.⁷⁶ It held that the agency had acted arbitrarily in failing to make a threshold determination that a "significant health hazard" existed at the level of exposure prohibited by the regulation and that the prohibition was therefore necessary.⁷⁷ Justice William H. Rehnquist, however, stated in concurrence that the statutory provision did in fact violate the nondelegation doctrine.⁷⁸

One year later, in American Textile Manufacturers Institute, Inc. v. Donovan,⁷⁹ the Court held that OSHA need not perform a full cost-benefit analysis to select "feasible" exposure standards, concluding that the OSH Act's legislative history provided sufficient evidence that feasible meant "capable of economic and technological accomplishment."⁸⁰ In dissent, Justice Rehnquist, with then-Chief Justice Warren E. Burger, argued that Congress had evaded fundamental policy issues regarding the role of costs in workplace safety, thereby unlawfully delegating its duties to an executive agency.⁸¹ This restrictive view of Congress' power to delegate policymaking authority to agencies generated some support among academics and other federal judges, but seemed a mere blip on the radar screen of the modern nondelegation jurisprudence—that is, until American Trucking came along.⁸²

II. American Trucking Ass'n v. EPA: A New Era, or "Nothing New Under the Sun?"⁸³

A. The D.C. Circuit Resurrects the Strict Nondelegation Doctrine

In American Trucking,⁸⁴ the U.S. Court of Appeals for the D.C. Circuit astounded the legal community by invalidating an agency's interpretation of a regulatory statute on nondelegation grounds, thereby breathing new life into a doctrine thought long dead or at least "dormant since the mushrooming of the regulatory state under the New Deal."⁸⁵ Specifically, the court held that EPA's construction of the CAA's provisions for criteria air pollutants resulted in an unconstitutional delegation of legislative power.⁸⁶

Pursuant to the CAA, EPA must set primary NAAQS "requisite to protect the public health" with an "adequate margin of safety."⁸⁷ It must review the NAAQS at least every five years and revise them when "appropriate," considering the same criteria and using the same processes as it did for setting them in the first place.⁸⁸ Further, the CAA requires EPA's standards to "accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities."⁸⁹

At issue in American Trucking were the revised NAAQS for ground-level O₃ and PM. With respect to the O₃ standard, as representative of the regulations at issue, EPA replaced the existing 0.12 parts per million (ppm) standard, based on one-hour average concentration levels, with a new 0.08 ppm eight-hour standard.⁹⁰ In making this revision, EPA engaged in an extensive review of studies of respiratory problems associated with automobile and industrial emissions of O₃ precursors, and relied on the findings of the Clean Air Scientific Advisory Committee (CASAC).⁹¹ EPA found that the existing standard did not adequately protect public health because it exposed more people to more serious, long-term effects.⁹² It also rejected a more stringent [31 ELR 11157] standard, concluding that 0.07 ppm was closer to peak background levels from nonanthropogenic sources of O₃, and that "the most certain O₃-related effects [at that level], while judged to be adverse, are transient and reversible."⁹³

However, EPA could not pinpoint with precision an ambient concentration level absolutely "requisite to protect the public health" with an "adequate margin of safety," because O₃ is regarded as a nonthreshold pollutant—one which likely causes adverse health affects at any exposure level above zero.⁹⁴ Then-Administrator Carol Browner explained that EPA's risk assessment "indicated differences in risk to the public among various levels [of exposure above zero], but they did not by themselves provide a clear break point for a decision."⁹⁵

The court did not seriously question the science behind the 0.08 ppm standard, noting that EPA's conclusions were within the range recommended by the CASAC, and based on hundreds of studies published in peer-reviewed journals.⁹⁶ Instead, it found that EPA had failed to articulate an "intelligible principle" in setting its new O₃ standard,⁹⁷ stating that "it is as though Congress commanded EPA to select 'big guys,' and EPA announced that it would evaluate candidates based on height and weight, but revealed no cutoff point."⁹⁸ The lack of parameters on "how tall" and "how heavy," the court concluded, "leaves [EPA] free to pick any point between zero and a hair below the concentrations yielding London's Killer Fog."⁹⁹ The court viewed EPA's freedom to choose the appropriate NAAQS as alarmingly unconstrained: "The maximum stringency would send industry not just to the brink of ruin but hurtling over it, while the minimum stringency may be close to doing nothing at all."¹⁰⁰

In support of its decision to invalidate the NAAQS on nondelegation grounds, the court cited only two Supreme Court majority opinions, Schechter Poultry and J.W. Hampton Jr. & Co. v. United States.¹⁰¹ In Hampton, the Court found that a law authorizing the president to regulate customs duties, with the assistance of the U.S. Tariff Commission, was in fact a valid delegation of legislative power.¹⁰² The Court stated that it was simply a matter of "common sense" that a commission would be endowed with the power to investigate, take evidence from interested parties, and fix rates in a manner responsive to fluctuating market conditions.¹⁰³

The statute reviewed in Schechter Poultry, NIRA, delegated legislative power to establish "codes of fair competition," not to an executive agency like EPA, but to private groups.¹⁰⁴ Without defining "fair," other than with reference to the general objectives of industrial recovery, the broad-sweeping delegation almost assured that private interests would promote themselves at the expense of other members of their trade. In contrast, the CAA's directive to EPA to issue NAAQS as "requisite to protect public health" is a far cry from a boundless delegation to the regulated industry or group.

Judge Stephen F. Williams, writing for the American Trucking majority, mustered additional support from a previous case he had penned for the D.C. Circuit, United Autoworkers v. Occupational Safety & Health Administration (Lockout/Tagout I).¹⁰⁵ There, the court remanded an OSHA regulation requiring employers to lock or tag energy isolating devices, such as circuit breakers, when servicing industrial equipment. OSHA's position that it had authority to select any feasible restriction that effectuated the statutory directive for standards "reasonably necessary or appropriate to provide safe or healthful employment" was, according to the court, unreasonably broad in light of nondelegation principles.¹⁰⁶

Judge David S. Tatel, in dissent, had no difficulty distinguishing Lockout/Tagout I, and finding that the CAA passed the constitutional bar:

The CAA does not delegate to EPA authority to do whatever is "reasonably necessary or appropriate" to protect public health. Instead the statute directs the Agency to fashion standards that are "requisite" to protect the public health. In other words, EPA must set pollution standards at levels necessary to protect the public health, whether "reasonable" or not, whether "appropriate" or not.¹⁰⁷

The dissent found that EPA had a legitimate rationale for selecting its O₃ NAAQS: "EPA did not find simply that public health risks decrease at lower levels. Instead, it found that public health effects differ below 0.08 ppm, i.e., that they are 'transient and reversible,'" and that 0.08 ppm, unlike 0.07 [31 ELR 11158] ppm, was distinguishable from background O₃ levels.¹⁰⁸ Moreover, EPA's extensive review of relevant studies and of the CASAC's recommendations was in line with the CAA's requirement that NAAQS "accurately reflect the latest scientific knowledge" about the effects of air pollution on health.¹⁰⁹ Judge Tatel sagely concluded that "whether EPA arbitrarily selected the studies it relied upon or drew mistaken conclusions from those studies … has nothing to do with our inquiry under the nondelegation doctrine. Those issues relate to whether the NAAQS are arbitrary and capricious."¹¹⁰

B. The Supreme Court Re-Inters Strict Nondelegation Review

Before reaching the nondelegation issue in American Trucking, Justice Antonin Scalia, writing for the majority, delineated the scope of authority conferred on EPA by defining the role of implementation costs in setting NAAQS.¹¹¹ The opinion unequivocally concluded that economic considerations are barred based on the plain language of CAA § 109, requiring EPA to set standards "requisite to protect the public health," the legislative history of the Act, and § 109's crucial role in the overall framework of the Act.¹¹²

As for nondelegation, the Supreme Court acknowledged that the text of Article I, § 1, which vests all legislative powers in Congress, permits no delegation of such powers.¹¹³ Accordingly, "we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must 'lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.'"¹¹⁴ In other words, the agency cannot itself cure an unlawful delegation.

The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise—that is to say, the prescription of the standard that Congress has omitted—would itself be an exercise of the forbidden legislative authority.¹¹⁵

The congressional limitations on EPA's discretion, requiring standards to be set at the level "requisite"—not lower or higher than necessary—to protect public health, were found to "fit[] comfortably within the scope of discretion permitted by our precedent,"¹¹⁶ providing parameters "strikingly similar to the ones we approved" in numerous cases.¹¹⁷ In contrast, the statutory directive at issue in Panama Refining provided "literally no guidance for the exercise of discretion," while the provision invalidated in Schechter Poultry allowed regulations affecting "the entire economy" guided only by a pie-in-the-sky standard of assuring "fair competition."¹¹⁸

In reaching its conclusion, the Court flatly rejected the D.C. Circuit's demand for a definitive exposition of "how much is too much." Although it acknowledged that "the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred,"¹¹⁹ it concluded that "even in sweeping regulatory schemes we have never demanded … that statutes provide a 'determinate criterion'" for quantifying the harm to be regulated.¹²⁰ Accordingly, Congress need not decree "how imminent" is too imminent, or how "hazardous" is too hazardous. Even for nonthreshold pollutants like O₃ and PM, where health effects can be found at any level above zero, EPA is allowed the discretion "to make judgments of degree."¹²¹

Justices John P. Stevens and David H. Souter, in their concurring opinion, gently admonished the majority for pretending that the power delegated to EPA was "somehow not 'legislative power,'" arguing that "it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is 'legislative power,'" i.e., the formulation of rules for the future.¹²² However, while the text of Article I explicitly vests legislative powers in Congress, it does not "purport to limit the authority of [the] recipient of power to delegate authority to others."¹²³ According to Justices Stevens and Souter, although a delegation may be legislative, as long as it provides "a sufficiently intelligible principle, there is nothing inherently unconstitutional about it."¹²⁴

Justice Clarence Thomas took a different tack in his concurrence, implying that the majority had engaged in judicial slight of hand by concluding that the "intelligible principles" requirement comports with the text of Article I. Even if the principle is intelligible, Justice Thomas believes "there are cases in which … the significance of the delegated decision is simply too great for the decision to be called anything other than 'legislative.'"¹²⁵ He invited an opportunity to reconsider the Court's precedents on cessions of legislative power in future cases, specifically, "whether our delegation [31 ELR 11159] jurisprudence has strayed too far from our Founders' understanding of separation of powers."¹²⁶

III. The Conventional Nondelegation Doctrine—May It Rest in Peace

Time and time again, with American Trucking being the most recent pronouncement, a majority of the Court has displayed little to no hesitation in finding that statutory provisions giving agencies even the most extensive discretionary powers satisfy nondelegation concerns. Although "intelligible principles" continues to serve as the litmus test for discerning unlawful delegations, one wonders whether there is anything of substance left. Is the doctrine a mere chimera, lurking at the edges of legal fantasy, or will it be resurrected, like the phoenix, as a meaningful constraint on congressional delegations in future cases?

Odds are, the smart money would be placed on the former rather than the latter. In the aftermath of American Trucking, most regulatory legislation seems to provide intelligible enough principles to survive nondelegation scrutiny. After all, the Court declared the CAA's requirement for standards "requisite" to protect public health "well within the outer limits of our nondelegation precedents."¹²⁷ Yet by stating that the degree of acceptable discretion varies "according to the scope of the power congressionally conferred,"¹²⁸ the opinion invites a more probing inquiry into the very nature of the delegated power, opening the door to an alternative form of context-sensitive nondelegation review. The term "scope" is commonly used to encompass not only the degree or extent of a subject (here, has Congress provided "intelligible" enough principles) but also the nature of that subject.¹²⁹ Indeed, the use of the term in American Trucking must mean something more than mere degree, otherwise the Court's statement is hopelessly circular: the degree of acceptable discretion varies according to the degree of the power conferred.

Delegation canons, pro and con, provide a viable alternative to the conventional doctrine by elevating the context and nature of the power conferred on the delegatee over a quantitative fetish for legislative semantics. Nondelegation canons, a concept raised by Professor Sunstein,¹³⁰ would be appropriate in certain areas where the dangers of overreaching or factional influence are most compelling, or where the protection of individual rights or state or tribal sovereignty necessitate a direct link to Congress as a matter of institutional design. Delegations to entities other than expert governmental agencies or commissions, particularly those that allow a non-neutral delegatee to establish policy and foist it upon an unwilling minority, as in Schechter Poultry and Carter v. Carter Coal Co.,¹³¹ are most troubling. Professor Sunstein would also include delegations which result in the retroactive application of statutes, intrusions on state sovereignty and on fundamental constitutional rights, the extraterritorial application of domestic law, abrogation of American Indian treaties, and decisions requiring tremendous expenditures for marginal gains. These canons would operate as a rule of construction that "trumps" Chevron deference; Congress must voice a clear intent to grant certain powers to the executive branch, and agencies will not enjoy the benefit of the doubt in the face of legislative ambiguity.¹³² Further, the canons would identify subjects for which Congress must itself make the decision, where no amount of clarity would allow it to "pass the buck" to a delegatee.¹³³

By the same token, certain subjects would enjoy a presumption of validity based on the nature of the power conferred on the delegatee. Pro-delegation canons go hand in hand with Chevron deference; where Congress is ambiguous, an implied delegation is presumed, leaving the agency to fill the gap.¹³⁴ A "rule of necessity" and of long-standing administrative practice may comprise two possible pro-delegation canons. The preservation of public lands is another area justifying a pro-delegation canon, as it is a unique type of power which does not trigger the concerns evident in cases like Schechter Poultry.

Rather than attempting to provide an exhaustive list of subjects to be included as nondelegation or pro-delegation canons, this section of the Article identifies select areas that may fit in either category to demonstrate that focusing on the context and nature of the delegated power is an appropriate means of satisfying the objectives of the nondelegation doctrine. Delegation canons would help assure accountability, a balance of governmental powers and institutional design, and reasonable, unbiased decisionmaking. Granted, it will be cumbersome deciding which subjects belong in either category. However, this exercise poses less danger of judicial usurpation of policymaking powers than the ad hoc [31 ELR 11160] "intelligible principles" test, and it fosters an approach that is more transparent and predictable in implementation.

A. Contextual Nondelegation Canons

1. Delegations Affecting the Entire National Economy

The American Trucking opinion singles out delegations having a tremendous impact on the nation's economy as potentially subject to more rigorous review: "While Congress need not provide any direction to the EPA regarding the manner in which it is to define 'country elevators,' which are to be exempt from new stationary source regulations … it must provide substantial guidance on setting air standards that affect the entire national economy."¹³⁵ Presumably, a line has been drawn between relatively inconsequential delegations with minimal or localized economic effects, which need specify no substantive parameters, and broad-sweeping delegations with pervasive effects, which require substantial guidance via "intelligible principles."

Regulatory directives with potentially pervasive effects on the national economy are often subjected to relatively rigorous scrutiny, whether under the label of nondelegation or otherwise.¹³⁶ But this is not solely a matter of degree. I have argued elsewhere that sweeping legislative provisions authorized under the Commerce Clause were most likely to fall under strict nondelegation review.¹³⁷ Yet the revised NAAQS at issue in American Trucking undoubtedly came within this category, and the Supreme Court concluded that the CAA's guidance was "substantial" enough, upholding the provision with little trouble.¹³⁸ Other recent opinions suggest that even the most economically significant and far-reaching provisions are likely to satisfy nondelegation scrutiny, although they may be invalidated as beyond the scope of the Commerce Clause, or as an unreasonable interpretation of statutory mandates under Chevron.¹³⁹

In AT&T Corp. v. Iowa Utilities Board,¹⁴⁰ regulations issued under the Telecommunications Act, which allows new service providers to lease elements of existing telephone carriers' network if, inter alia, "access to such network elements is necessary," were remanded as an unreasonable interpretation of the statute. The Court acknowledged that the Act, far from a "model of clarity," was:

In many important respects a model of ambiguity or indeed even self-contradiction. That is most unfortunate for a piece of legislation that profoundly affects a crucial segment of the economy worth tens of billions of dollars. [It] can be read to grant … "most promiscuous rights" to the FCC … but Congress is well aware that the ambiguities it chooses to produce in a statute will be resolved by the implementing agency [under Chevron].¹⁴¹

In spite of the lack of limiting standards, nondelegation was apparently a non-issue for the Court. Instead, the Court found that the Federal Communications Commission (FCC) had gone too far in this case, concluding that the rule was "simply not in accord with the ordinary and fair meaning" of the term "necessary" and was contrary to the Act's objectives.¹⁴²

More recently, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,¹⁴³ the Court concluded that the U.S. Army Corps of Engineers' (the Corps') definition of "navigable waters" to include isolated wetlands used as habitat by migratory birds was not entitled to Chevron deference, as it raised "significant constitutional questions" under the Commerce Clause.¹⁴⁴ If Congress wanted to invoke the outer limits of its powers, the Court reasoned, it should say so explicitly.¹⁴⁵ It seems that the Clean Water Act's prohibition on discharges to "navigable waters,"¹⁴⁶ vaguely defined as "waters of the United [31 ELR 11161] States,"¹⁴⁷ would have been a prime candidate for a reinvigorated form of nondelegation review, particularly given its pervasive effects on development.¹⁴⁸ However, the issue was raised only in passing by the petitioners, and, had the Court taken it up, it likely would have sidestepped this constitutional issue as it did the Commerce Clause issue with a narrow construction of the statute.¹⁴⁹

2. Delegations to Nongovernmental or Unaccountable Delegatees

The second category of delegations that may be subject to a delegation canon is suggested by the citations provided in support of the American Trucking Court's statement regarding the scope of the delegated power, Loving v. United States and United States v. Mazurie.¹⁵⁰ The power granted to delegatees in these two cases was unique, not quantitatively, given the extent of the delegated authority, but qualitatively, given the identity of the delegatee and the nature of the power. As Justice Benjamin N. Cardozo indicated in Schechter Poultry, the identity of the delegatee does have some bearing on the inquiry: "When the task that is set before one is that of cleaning house, it is prudent as well as usual to take counsel of the dwellers."¹⁵¹

In Loving, the Court upheld a statute that authorized the president to prescribe aggravating factors for the imposition of the death penalty in military capital cases.¹⁵² The Court concluded that Congress had provided sufficient guidance, in light of the president's traditional authority and "undoubted competency" to superintend the military as Commander in Chief. "Perhaps more explicit guidance … would be necessary if delegation were made to a newly created entity without independent authority in the area…. [but] the same limitations on delegation do not apply 'where the entity exercising the delegated authority possesses independent authority over the subject matter.'"¹⁵³ Similarly, Mazurie rejected a nondelegation challenge to a statute authorizing American Indian tribes to regulate the import of liquor into Indian country, a matter for which the tribes, as sovereign entities, possess independent authority.¹⁵⁴

From these and previous cases, it appears relatively well settled that statutory provisions that delegate authority to sovereign entities with independent power over the subject matter of the delegation will invoke minimal review.¹⁵⁵ Conversely, if the delegation addresses a subject which is not within the delegatee's residual sovereign authority, the identity of the delegatee might render the statute more vulnerable to invalidation on nondelegation grounds.¹⁵⁶ Delegations to independent, nongovernmental bodies, like those at issue in Schechter Poultry and Carter Coal, are most likely to come up short in terms of accountability as well as fundamental fairness.¹⁵⁷ Such provisions promote factionalism and allow special interests to further themselves at the expense of other members of the interested public, frequently behind closed doors.

Although not nearly as troubling as delegations to trade associations or industrial groups, there is a plausible argument that delegations to the president might also be more problematic than delegations to executive agencies like EPA. True, the president is even more accountable to political pressure than is an agency official, thereby satisfying one of the preeminent concerns underlying the doctrine.¹⁵⁸ However, presidential actions generally lack important procedural safeguards inherent in the administrative process. The APA's requirements for public involvement in rulemaking do not apply to presidential fiat.¹⁵⁹ Likewise, the provisions for judicial review of "final agency action" are [31 ELR 11162] inapplicable, as the president is not an agency within the purview of the APA.¹⁶⁰ The offending provisions in both Schechter Poultry and Panama Refining involved delegations to the president, with assistance available from industry representatives but not from an expert agency.¹⁶¹ In contrast, Mistretta, Hampton, American Trucking, and most other cases rejecting nondelegation arguments involved delegations to executive agencies or expert commissions with fact-finding prerogatives, beholden to a panoply of procedural requirements.¹⁶²

The presidential designation of monuments under the Antiquities Act of 1906¹⁶³ has been targeted as one area of concern. State and local representatives, ranchers, and "wise use" advocates have filed several lawsuits challenging former President William J. Clinton's designation of Grand Staircase-Escalante and other national monuments. According to the plaintiffs, President Clinton's decision to withdraw the lands at issue from economically lucrative but environmentally destructive activities, like mining, logging, and ranching, provide an egregious example of executive discretion run rampant.¹⁶⁴

The Antiquities Act gives the president discretion to reserve public lands by declaring "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest to be national monuments."¹⁶⁵ The reservations are to encompass "parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected."¹⁶⁶ Designation decisions have been challenged on a variety of grounds over the years, including nondelegation, but none have been set aside as yet.

In Esplin v. Clinton,¹⁶⁷ a group of ranchers and state legislators allege that the decision to withdraw public lands and reserve them as the Grand Canyon-Parashant National Monument is unconstitutional because, under the Property Clause,¹⁶⁸ only Congress may designate federal lands "for disposition," and it may not "delegate power to dispose of federal land to the Executive…."¹⁶⁹ Likewise, in Utah Association of Counties v. Clinton¹⁷⁰ and Mountain States Legal Foundation v. Clinton,¹⁷¹ plaintiffs allege that the President Clinton's decision to designate Grand Staircase-Escalante National Monument violates the separation-of-powers doctrine and exceeds his delegated authorities under the Antiquities Act.¹⁷²

Presidents of both parties have exercised their Antiquities Act power extensively throughout the 20th century, withdrawing millions of acres to create the Grand Canyon National Monument,¹⁷³ Jackson Hole National Monument,¹⁷⁴ and, more recently, the Grand Staircase-Escalante National Monument and the Grand Canyon-Parashant National Monument.¹⁷⁵ Even before the Antiquities Act was enacted, presidents wielded withdrawal powers with the tacit agreement of Congress, providing an extensive history of preservationist practices.¹⁷⁶ Arguably, the preservation of public lands through the use of withdrawal powers could take its place with foreign affairs and national defense as categories of activities within the president's special expertise. However, delegations in those areas have been upheld with reference to the explicit constitutional grant of authority to the president as commander in chief.¹⁷⁷ Although Congress' Property Clause power to make all "needful" regulation respecting the public lands has been described as "without [31 ELR 11163] limitations,"¹⁷⁸ no parallel provision of the Constitution provides independent presidential powers over public lands. A pro-delegation canon regarding preservation of the public lands, if one exists, is better justified by the unique nature of the power than by the identity or independent authority of the delegatee.

B. Contextual Pro-Delegation Canons

Pro-delegation canons might be recognized in areas where accountability can be assured and where separation-of-powers concerns are minimal, given the nature of the power conferred. As Chief Justice Rehnquist explained in Industrial Union, in addition to situations where the delegatee possesses independent or residual authority over the subject matter, some delegations warrant less scrutiny than others.¹⁷⁹ Chief Justice Rehnquist's examples include cases where the statutory delegation takes place against the backdrop of an administrative practice that predated the legislation,¹⁸⁰ and "a rule of necessity," where it would be "unreasonable and impracticable to compel Congress to prescribe detailed rules" regarding a particular policy or situation.¹⁸¹ Executive exercises of Property Clause power take place within an extensive backdrop of preexisting administrative practices governing public lands,¹⁸² and they satisfy the "rule of necessity."¹⁸³ Further, the Property Clause might itself justify an additional pro-delegation canon, given the unique nature of the power to manage the public lands.

Presidential withdrawals have enjoyed a long history of judicial and congressional approval. In United States v. Midwest Oil Co.,¹⁸⁴ the Supreme Court upheld one of the most extensive withdrawals ever accomplished by a president, a declaration that 3.6 million acres of public lands would be "off limits" to oil and gas development. It concluded that President William H. Taft's decision was implicitly allowed by congressional acquiescence based on the executive's "long continued practice" of making withdrawals without express statutory authority.¹⁸⁵ Such actions did "no harm to the interest of the public at large," given that the withdrawal, by denying use of the resource, simply preserved congressional prerogatives and could therefore be subject to legislative reversal.¹⁸⁶

Prior to the passage of the Antiquities Act, Congress itself had explicitly validated the practice of executive withdrawal through a variety of enactments.¹⁸⁷ One of the most widely used withdrawal statutes was the 1891 General Revision Act, which authorized the president to "set apart and reserve … any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations."¹⁸⁸ Presidents withdrew more than 194 million acres of forest lands under this statute.¹⁸⁹ Congress subsequently passed the Pickett Act, providing that "the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands … and reserve the same for … public purposes."¹⁹⁰ Instead of restricting itself to temporary withdrawals, however, the executive branch continued to assert that it possessed all the implied withdrawal powers it had enjoyed prior to the Pickett Act, reserving millions of acres from disposition under mining laws and other public lands statutes, with no judicial curtailment and minimal congressional interference.¹⁹¹

The presidential invocation of Property Clause powers to protect public lands can also be justified under a pro-delegation "rule of necessity." President Taft's withdrawal in Midwest Oil was undoubtedly necessary to preserve the nation's oil reserves; Congress could not have acted quickly enough to prevent their rapid depletion.¹⁹² In Grimaud,¹⁹³ a "necessity" theme runs throughout the Supreme Court's opinion upholding the broadly phrased language of the National Forest Organic Act of 1897 against a nondelegation challenge. Grimaud was indicted for grazing sheep on a forest reserve without permission of the Secretary of Agriculture. In defense, he claimed that the power to "make such rules and regulations … as will insure the objects of such reservations; [31 ELR 11164] namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction" was an unlawful delegation of legislative functions to an executive entity.¹⁹⁴ The Court concluded that the National Forest Organic Act had adequately defined the subjects on which the Secretary could regulate, as it was "impracticable" for Congress to specify various details of management or determine when activities might be harmful in one forest but not in another, given the stage of timber growth or the season of the year.¹⁹⁵

As a separate delegation category in and of itself, the management of public lands may be more amenable to delegation to the executive branch because of the unique nature of the Property Clause. In executing delegated Property Clause powers, the executive acts in a dual capacity, both as proprietor and as sovereign.¹⁹⁶ Thus, property management is not necessarily analogous to other types of law making, and more leeway might be afforded executive agencies, acting not only as instruments of a tripartite government but also as proprietors, when public property is implicated.¹⁹⁷ Courts have regularly cited the proprietorship of the public lands to ratify sweeping exercises of power. In Kleppe v. New Mexico,¹⁹⁸ the Court described Congress' dual proprietary and sovereign powers under the Property Clause as "complete power" over the "public property entrusted to it."¹⁹⁹ The extent to which the federal government may go to protect its property is "measured by the exigencies of the particular case."²⁰⁰ Even a leading critic of delegations, Prof. David Schoenbrod, concludes that the management of government property is distinct from the governance of private conduct: "For Congress to manage public property through agents having broad discretion rather than through narrowly legislated rules is not just convenient but necessary."²⁰¹

In Butte City Water Co. v. Baker,²⁰² the Supreme Court rejected a nondelegation challenge to a provision of the General Mining Act²⁰³ that entrusted "minor and subordinate regulations" to local legislatures for the location of mining claims on federal lands in a manner not inconsistent with federal mining law.²⁰⁴ The provision transferred power to nonfederal entities—a delegation which would otherwise be found highly offensive of nondelegation principles. However, the Court found that the delegation of Property Clause power "is not of a legislative character in the highest sense of the term, and, as an owner may delegate to his principal agent the right to employ subordinates …, so it would seem that Congress might rightfully intrust to the local legislature the determination of minor matters respecting the disposal of these lands."²⁰⁵ Notably, Butte City was explicitly distinguished in Schechter Poultry, where the Court remarked that, unlike mining on public lands, it could not "be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries…."²⁰⁶

Although Butte City involved the use and disposition of the public lands, preservation-oriented actions have been given even greater deference, as is evident in Kleppe²⁰⁷ and Midwest Oil.²⁰⁸ In Linn Land Co. v. Udall,²⁰⁹ the Secretary's power to classify lands as valuable for grazing, production of crops or any other use, or to be exchanged for scrip rights was found constitutional.²¹⁰ According to the court, the rather vague statutory standards regarding the retention and disposition of public lands should not be piecemealed or viewed in isolation, as they "gain their vitality from the background and purposes of the entire Act…," passed as part of a "general plan to protect the Government's lands."²¹¹

[31 ELR 11165]

Executive power to protect federal property has survived nondelegation challenges even when the regulations pertain to activities off the public lands. In United States v. Brown,²¹² the Eighth Circuit held that National Park Service regulations prohibiting hunting on nonfederal waters within the boundaries of Voyageurs National Park were enforceable as a proper delegation of congressional authority.²¹³ The court gave the nondelegation argument short shrift, satisfied that the regulations were "founded upon a rational basis," as hunting on adjacent waters could "significantly interfere with the use of the park and the purpose for which it was established."²¹⁴

Likewise, in Stupak-Thrall v. United States,²¹⁵ the U.S. Forest Service's regulations prohibiting the use of house-boats and sailboats on Crooked Lake, most of which was within a designated wilderness area, were upheld. Owners of recreational and resort properties along the lakeshore alleged that the Forest Service had acted beyond its Property Clause and statutory authorities under the Organic Act and the Wilderness Acts, in that it had unlawfully infringed on plaintiffs' valid existing riparian rights.²¹⁶ The court rejected the challenges, finding that Congress had the authority to regulate nonfederal lands in order to protect federal property.²¹⁷ The court went on to say that "the scope of [the Forest Service's] authority—except to the extent that Congress may expressly limit it—is coextensive with Congress' own authority under the Property Clause."²¹⁸

There are additional distinctions between the exercise of Property Clause powers and of the Commerce Clause powers at issue in Schechter Poultry and Panama Refining. Property Clause enactments concern only federal lands and resources. Because of the relatively narrow focus of the Property Clause power, the exercise of its authority has far less potential to invade state sovereignty in areas of traditional state interests and is less likely to impact the "whole economy" than statutes like NIRA and even the CAA.²¹⁹

While these factors weigh in favor of minimal nondelegation review in Property Clause cases, particularly where action is taken to preserve the public lands, there is at least one consideration that weighs against the liberal delegation to the president found in the Antiquities Act. Unlike the extensive administrative procedures afforded by the CAA, and, for that matter, other public lands statutes,²²⁰ Antiquities Act withdrawals lack procedural safeguards. As a result, such withdrawals could trigger key concerns underlying the nondelegation doctrine—accountability and reasoned, even-handed decisionmaking.

The Antiquities Act provides no regular means for members of the interested public to receive notice of the decisionmaking process or to make their views known through public hearings or the submission of public comments.²²¹ In addition, when the president designates a new national monument, there is no requirement that environmental effects be assessed or that alternatives be considered because the National Environmental Policy Act (NEPA)²²² does not apply to presidential action.²²³ In the absence of regular pre-designation processes, opposing viewpoints are less likely to be publicly aired and fully considered, and viable alternatives regarding the geographic scope of the withdrawal or allowable activities within monument boundaries may be overlooked.

The lack of public process is exacerbated by the lack of opportunity for judicial review. The APA provides for review of "final agency action," but the president is not an [31 ELR 11166] agency within the purview of that Act.²²⁴ To the extent that review is allowed, a reviewing court could be reduced to accepting post hoc rationalizations in an administrative record compiled solely for litigation purposes.²²⁵

Although the Clinton Administration afforded some opportunity for public input regarding the recent designations,²²⁶ other administrations may not be as amenable to public processes. Procedural safeguards could be formalized through legislative amendment or administrative regulations.²²⁷ Establishing regular means for public input would not only provide the executive branch with more complete information from a variety of perspectives, at least some of which will flow from local interests knowledgeable about the lands in question, but it would also heighten public acceptance of designation decisions.²²⁸ Judicial review could then enhance the legitimacy of the decisionmaking process and the ultimate outcome. However, as a practical matter, the cumbersome nature of NEPA and other public processes would have a chilling effect on executive withdrawals, and the delay caused by public involvement and other procedural requirements could result in harm to the public lands and resources in question, largely eviscerating the benefits of additional process.²²⁹

Even without formalized procedural safeguards, Antiquities Act designations do not trigger the separation-of-powers and federalism concerns raised in American Trucking and especially evident in Schechter Poultry. As noted in Midwest Oil and, more recently, in Food & Drug Administration v. Brown & Williamson Tobacco Corp.,²³⁰ the president is acutely accountable to political processes.²³¹ Moreover, given the federal government's multi-faceted power over public lands, the expectations of both state and private entities in having a say over the expropriation of those resources are minimized.²³² Finally, because Antiquities Act withdrawals are preservation-oriented, preventing destructive uses inconsistent with monument designation, Congress has ample opportunity to step in and correct any situations it determines are unfounded or improperly motivated, thus rectifying any incursion on legislative prerogatives. A pro-delegation canon would recognize these factors.

IV. Resuscitating the Albatross

The brief revival of the conventional nondelegation doctrine by the D.C. Circuit in American Trucking was not entirely surprising, as it went hand in hand with the recent hue and cry for regulatory reform and devolution, i.e., less regulation. After all, the more precise Congress must be, the less likely it is to enact extensive regulatory programs.

By holding that the CAA easily passed muster, the Supreme Court closed the door on strict nondelegation review, but continued to cling to the "intelligible principles" test. The requirement that EPA establish and revise NAAQS as requisite to protect public health with an adequate margin of safety could not be characterized as a complete absence of intelligible principles, particularly when considered within the context of the Act as a whole, which provides additional guidance by requiring EPA to base its decisions on sound science. Instead, the statute provides reasonably clear legislative parameters, and allows an expert administrative agency to fill in the details within those parameters. The Act also affords procedural safeguards and, ultimately, judicial review, to protect the interested public from arbitrary decisionmaking and abuse of power.

Although the Court reached the appropriate conclusion with respect to the CAA, a long-standing regulatory statute and member of the "first generation" of federal environmental laws, it failed to provide much guidance on the future viability and application of the nondelegation doctrine. There are those who might just as soon see the doctrine entombed in its final resting place, and good riddance. But the last rites should not be said over the underlying constitutional principle, as it serves the justifiable objectives of accountability, a balance of governmental powers, and reasoned and unbiased regulatory decisionmaking. While discarding the doctrine altogether would be a mistake, the "intelligible principles" test is a legal albatross lacking principled judicial parameters and undermining public confidence in both legislative and regulatory outcomes.

A set of delegation canons, identifying areas of nondelegation or pro-delegation, could better serve the doctrine's objectives than does a judicial focus on legislative semantics. The touchstone would be the nature of the power, the need for delegation, given the complexity or urgency of the issues to be addressed, and the danger of overreaching or [31 ELR 11167] factional influence. The protection of individual rights and state or tribal sovereignty in the exercise of the power would also be an important consideration. No doubt, deciding which subjects belong in either category would be a difficult task, yet it would be less troublesome than defining what is "intelligible," and far more transparent and predictable in application.

This Article tests the proposed alternative by identifying a few areas that may belong in either a nondelegation or a pro-delegation category. Legislation that confers authority upon nongovernmental delegatees who are themselves the subject of the regulation at issue are most likely to promote factionalism and bias while lacking meaningful procedural safeguards; a delegation of this nature may be considered a nondelegation canon. In contrast, the preservation of public lands pursuant to the Property Clause, a unique power with both proprietary and sovereign attributes, is one area suitable for a pro-delegation canon.

Generally speaking, the nondelegation canons trump Chevron, denying deference to an agency's interpretation and even banning delegation in certain areas. Meanwhile, pro-delegation canons work in tandem with Chevron, which assumes that a "gap" in a statute indicates an implied congressional delegation on a particular topic; courts should presume that Congress intended for the ambiguity to be filled by an agency in a reasonable fashion, consistent with statutory goals. This approach calls upon the politically accountable branches to make important policy choices regarding regulatory programs, while allowing the courts to engage in meaningful review.

God save the ancient mariner, From the fiends, that plague thee thus! Why look'st thou so? With my cross bow I shot the Albatross.

***

And I had done a hellish thing.

And it would work 'em woe: For all averred, I had killed the bird That made the breeze to blow.²³³

1. 5 U.S.C. §§ 551-559, 701-706, available in ELR STAT. ADMIN. PROC.

2. See J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394, 407 (1928).

3. 467 U.S. 837, 14 ELR 20507 (1984).

4. See id. (requiring a two-step inquiry into an agency's construction of its governing statutes, where courts first determine whether the provision is unclear, and, if so, whether the interpretation is permissible).

5. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), rev'd in part sub nom., Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 31 ELR 20512 (2001).

6. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. See id. § 7409(b)(1), (d), ELR STAT. CAA § 109(b)(1), (d).

7. 175 F.3d at 1034-35, 1037, 29 ELR at 21072, 21073. In 1952, extremely high PM levels, up to 2,500 [mu] g/m³, contributed to 4,000 deaths in one week. See id. at 1036, 29 ELR at 21073 (citing Logan, Mortality in the London Fog Incident, 1952, THE LANCET, Feb. 4, 1953, at 336-38).

8. Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 31 ELR 20512 (2001). The Court upheld the D.C. Circuit's determination that the CAA bars EPA from considering costs in setting NAAQS, but remanded the revised O₃ rule, finding that EPA's implementation policy for nonattainment areas was unreasonable. Id.

9. Id. at 913-14, 31 ELR at 20514-15.

10. Id. at 912, 31 ELR at 20514.

11. Id. at 913, 31 ELR at 20514.

12. Id.

13. See Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000)

14. See WILLIAM SHAKESPEARE, MUCH ADO ABOUT NOTHING, in SHAKESPEARE: THE COMPLETE WORKS 697 (G.B Harrison ed., Harcourt, Brace & World 1968).

15. U.S. CONST. art. I, § 1.

16. See Field v. Clark, 143 U.S. 649, 694 (1892).

17. U.S. CONST. art. II, § 1. See also id. art. II, § 3 (directing the executive branch to "take care that the Laws be faithfully executed …").

18. Id. art. III, § 1.

19. See Mistretta v. United States, 488 U.S. 361, 381-82 (1989) ("a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another [is] built into the tripartite Federal Government") (citing THE FEDERALIST NO. 47 (James Madison)).

20. CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION 15-17 (1990).

21. See Leslie M. Kelleher, Separation of Powers and Delegations of Authority to Cancel Statutes in the Line Item Veto Act and the Rules Enabling Act, 68 GEO. WASH. L. REV. 395, 446 (2000). See also Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 434-35 (1987); Buckley v. Valeo, 424 U.S. 1, 122 (1976).

22. See Loving v. United States, 517 U.S. 748, 757 (1996). See also Mistretta, 488 U.S. at 380-81 (describing James Madison's views on separation of powers: "The greatest security against tyranny—the accumulation of excessive authority in a single Branch—lies not in a heretic division among the Branches, but in a carefully crafted system of checked and balanced power within each Branch") (citing THE FEDERALIST NO. 47, supra note 19). Although Madison exhibited some apprehension about the mixing of legislative and executive powers, see Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 123 n.1-2 (1994), he did not advocate a complete separation among the branches, concluding that only "where the whole power of one department is exercised by the same hands which possess the whole power of another department [would the] fundamental principles of a free constitution [be] subverted." THE FEDERALIST NO. 47, supra note 19, at 302 (G.P. Putnam & Sons ed., 1888). His concerns about encroachment were tempered by the need for efficiency in governmental operations. See Dean Alfange Jr., The Supreme Court and the Separation of Powers: A Welcome Return to Normalcy?, 58 GEO. WASH. L. REV. 668, 674-75 (1990); William C. Banks, Efficiency in Government: Separation of Powers Reconsidered, 35 SYRACUSE L. REV. 715, 719-22 (1984).

23. Although Article I's caveat that "all legislative powers" are vested in Congress could be cast as a prohibition on any delegation of that power, it has not been so construed. See Loving, 517 U.S. at 767 (noting that Article 1, § 8, clause 14, granting Congress power to make rules for the military forces, like other Article I powers, gives Congress "a precedence over, not exclusion of, Executive authority"). See also Sunstein, Nondelegation Canons, supra note 13, at n.29 (contrasting the German Constitution, which includes an express nondelegation principle).

24. Loving, 517 U.S. at 758 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)).

25. See U.S. CONST. art. I, § 8, cl. 18.

26. See William Funk, Rationality Review of State Administrative Rulemaking, 43 ADMIN. L. REV. 147, 161-62 (1991) ("agencies are not created to be representative bodies, politically responsive to an electorate").

27. See Federal Trade Comm'n v. Ruberoid Co, 343 U.S. 470, 487 (1952) (Jackson, J., dissenting); RICHARD J. PIERCE JR. ET AL., ADMINISTRATIVE LAW AND PROCESS 33 (3d ed. 1999) (citing Report of the Committee With Studies of Administrative Management in the Federal Government 39-43 (1937)).

28. See Robert L. Rabin, Legitimacy, Discretion, and the Concept of Rights, 92 YALE L.J. 1174, 1176-78 (1983) (describing evolution of regulatory authority from mere policing to more proactive managerial powers).

29. See SUNSTEIN, supra note 20, at 5.

30. 198 U.S. 45, 53 (1905).

31. See SUNSTEIN, supra note 20, at 6 (citing, inter alia, United States v. Elgin, J. & E. Ry., 298 U.S. 492 (1936); Federal Trade Comm'n v. Eastman Kodak Co., 274 U.S. 619, 623-25 (1927); Federal Trade Comm'n v. American Tobacco Co., 264 U.S. 298, 305-06 (1924); Federal Trade Comm'n v. Gratz, 253 U.S. 421, 427 (1920)). Lochner struck down a New York law limiting hours of employment in bakeries as an arbitrary interference with freedom of contract under the Fourteenth Amendment Due Process Clause.

32. See, e.g., National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30-32 (1937) (citing National Labor Relations Act of 1935, 49 Stat. 453, 29 U.S.C. § 160); National Broad. Co. v. United States, 319 U.S. 190 (1943) (citing Communications Act of 1934, 48 Stat. 1082, 47 U.S.C. § 303).

33. See JOHN LOCKE, SECOND TREATISE ON CIVIL GOVERNMENT §§ 141 (C.B. Macpherson ed., 1980) (1690).

34. Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 685, 10 ELR 20489, 20509 (1980) (Rehnquist, J., concurring).

35. See American Trucking Ass'n v. EPA, 175 F.3d 1027, 1038, 29 ELR 21071, 21073 (D.C. Cir. 1999) (citing Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 758-59 (D.D.C. 1971) (Leventhal, J., for three-judge panel)). For a persuasive empirical argument that these goals are not, in fact, advanced by a strict application of the nondelegation doctrine, but are instead undermined by requiring meticulous detail from congressional committees, where well-organized interest groups often dominate, see DAVID EPSTEIN & SHARYN O'HALLORAN, A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS 237-39 (Cambridge Univ. Press 1999). Cf. Loving v. United States, 517 U.S. 748, 758 (1996) ("Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution.") (citing 5 WORKS OF THOMAS JEFFERSON 319 (Paul L. Ford et al. eds., 1904)).

36. United States v. Grimaud, 70 Fed. 205 (S.D. Cal. 1909), rev'd, 220 U.S. 506 (1911).

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

38. See Field v. Clark, 143 U.S. 649, 693-94 (1892).

39. See, e.g., Field, 143 U.S. at 692-94 (upholding provision allowing president to suspend favorable tariff treatment for nations that imposed "exactions and duties" on American products "which he found to be … unequal and unreasonable"); Buttfield v. Stranahan, 192 U.S. 470, 496 (1904) (upholding delegation to the Secretary of Treasury to "establish uniform standards" for the quality of imported tea); Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) (sustaining legislative grant of power to federal courts to adopt rules of process); Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 387-88 (1813) (sustaining provision that allowed the president to revive a suspended trade law by determining that a factual contingency had occurred).

40. 220 U.S. 506, 517 (1911).

41. Id. at 509 (citing Organic Administration Act of 1897, ch. 2, 30 Stat. 34, currently codified at 16 U.S.C. § 478). The Court initially affirmed the lower court's opinion that the law was invalid by an equally divided vote, but then reversed it on rehearing. See Grimaud, 70 Fed. at 205 (holding that the Act unlawfully delegated lawmaking power to the executive branch by allowing "whatever the Secretary of Interior may … prohibit [to] be a misdemeanor …. The very essence of the alleged crime, namely, what act shall constitute it, is not fixed by Congress, but wholly confided to the discretion of an administrative officer").

42. Grimaud, 220 U.S. at 517.

43. See NIRA § 1, June 16, 1933, 48 Stat. 195, as amended by Act of June 14, 1935, 49 Stat. 375. For discussion of New Deal programs and their economic, social, and legal ramifications, see 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998); ALAN BRINKLEY, THE END OF REFORM: NEW DEAL LIBERALISM IN RECESSION AND WAR (1995); and WILLIAM E. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL (1963).

44. 295 U.S. 495 (1935).

45. Id. at 542-43 (reviewing NIRA § 3, 48 Stat. at 195, 196). Similarly, in what can be characterized as a quasi-nondelegation case, the Court found that a provision of the Coal Conservation Act, allowing a majority of miners to establish minimum wage and hour provisions, was "delegation in its most obnoxious form," and invalidated it on due process grounds as an improper grant of power to private parties. See Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936).

46. 293 U.S. 388 (1935) (reviewing NIRA § 9(c), 48 Stat. at 195, 200).

47. See id. at 415. See also Schechter, 295 U.S. at 541, 553 (stating that NIRA allowed the president vast and unfettered authority to act "for the betterment of business," constrained only by the extent of the federal Commerce Clause) (Cardozo, J., concurring)).

48. 300 U.S. 379 (1937). See LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT 79 (1985) (describing Justice Owen Roberts, a President Herbert Hoover appointee, as "the switch in time that saved the nine") (quoting Justice Abe Fortas).

49. 301 U.S. 1 (1937).

50. Id. at 40, 53. Justices Pierce Butler, James C. McReynolds, George Sutherland, and Willis Van DeVanter, the "four horsemen" most vehemently opposed to the New Deal, dissented, arguing that the "extraordinary power" delegated to the National Labor Relations Board to interfere in employer-employee relations violated the principles of Schechter and Carter Coal. Id. at 66. For an entertaining assessment of the Justices' track record, see Barry Cushman, The Secret Lives of the Four Horsemen, 83 VA. L. REV. 449 (1997) (concluding that they were not "handmaidens of the industrial and financial elite" but instead closet liberals).

51. See National Broad. Co. v. United States, 319 U.S. 190, 225-26 (1943).

52. See Yakus v. United States, 321 U.S. 414, 425-26 (1944).

53. See Sunshine Coal Co. v. Adkins, 310 U.S. 381, 397-98 (1940).

54. See Lichter v. United States, 334 U.S. 742, 778 (1948).

55. See American Power & Light Co. v. Securities & Exchange Comm'n, 329 U.S. 90, 104 (1946) (upholding provision allowing the Securities and Exchange Commission to modify holding company systems to ensure that they were not "unnecessarily complicated" and did not "unfairly or inequitably distribute voting power among security holders"). See also Clinton v. City of New York, 524 U.S. 417, 488 (1998) (Breyer, dissenting) (citing Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (1933) (power to regulate broadcast licensing); Fahey v. Mallonee, 332 U.S. 245, 253 (1947) (power to regulate banks)).

56. 488 U.S. 361 (1989).

57. Id. at 379 (citing Yakus, 321 U.S. at 425-26).

58. Id. See also Loving v. United States, 517 U.S. 748, 758 (1996).

59. 488 U.S. at 379 (citing Yakus, 321 U.S. at 425-26) (emphasis added).

60. See id. at 415-16 (Scalia, J., dissenting); Richard B. Stewart, Beyond Delegation Doctrine, 36 AM. U.L. REV. 323, 324-28 (1987) (noting the absence of "judicially manageable" criteria for determining which delegations are intelligible and therefore permissible).

61. See Mistretta, 488 U.S. at 377-79. The Court observed that Congress had legislated "a full hierarchy of punishment—from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives—and stipulated the most important offense and offender characteristics to place defendants within these categories." Id. at 377.

62. Id. at 379.

63. Id. at 376-77.

64. 10 U.S.C. § 47.

65. See Loving v. United States, 517 U.S. 748, 772-73 (1996).

66. See Touby v. United States, 500 U.S. 160, 166 (1991). Petitioners argued that Congress must speak with greater specificity when defining crimes, but the Court sidestepped this issue by finding that the Act was specific enough to survive even heightened review. Id.

67. See Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 219-21 (1989) (finding that Congress had "delimited the scope of the Secretary's discretion with much greater specificity than in delegations that we have upheld in the past" by relating assessments to volume, miles, or revenues).

68. See 5 U.S.C. §§ 701-706, available in ELR STAT. ADMIN. PROC. (providing administrative rulemaking procedures and allowing judicial review of agency action).

69. See 295 U.S. at 533 (discussing Act of September 26, 1914, 38 Stat. 717, codified at 15 U.S.C. § 45, which created a trade commission and provided for formal complaints, notice and hearing, findings of fact supported by adequate evidence, and judicial review to assure that the commission's actions were "within its statutory authority"). The Court noted that the Federal Trade Commission Act was substantively distinct from NIRA as well. See id. at 534, 552 (Cardozo, J., concurring) (explaining that NIRA "does not confine itself to the suppression of methods of competition that would be classified as unfair according to accepted business standards …. It sets up … rules to promote the welfare of the industry … without reference to standards, ethical or commercial, that could be known or predicted in advance of its adoption").

70. See American Power & Light Co. v. Securities & Exchange Comm'n, 329 U.S. 90, 105 (1946) (rejecting nondelegation argument and noting that "private rights are protected by access to the courts to test the application of the [congressional] policy"). See also Arizona v. California, 373 U.S. 546, 584-85 (1963) (upholding delegation to Secretary of the Interior to apportion Colorado River water where Secretary's power could be reined in by congressional oversight or judicial review); Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 763-64 (D.D.C. 1971) (emphasizing APA procedural requirements, including judicial review, in upholding the Economic Stabilization Act of 1970).

71. Warren v. Marion County, 353 P.2d 257, 260 (Or. 1960) (en banc) (citing 1 KENNETH C. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 2.03-2.05 (1958)) (emphasis added). See KENNETH C. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 3.3, 3.15 (2d ed. 1978) (explaining that courts should "look to the totality of legislative and administrative standards and procedural safeguards to determine whether administrative discretion has been confined to the greatest degree practicable").

72. 448 U.S. 607, 10 ELR 20489 (1980).

73. 29 U.S.C. §§ 651-678.

74. Id. § 655(b)(5).

75. 448 U.S. at 646, 10 ELR at 20499.

76. Id. at 642, 10 ELR at 20498 (discussing relationship between 29 U.S.C. §§ 652(8) and 655(b)(5)).

77. Id. The regulation was not justified, according to the Court, simply because OSHA had found a causal connection between benzene and leukemia. Id.

78. Id. at 675, 10 ELR at 20506 (Rehnquist, J., concurring).

79. 452 U.S. 490, 11 ELR 20736 (1981).

80. Id. at 514, 11 ELR at 20742.

81. Id. at 547, 11 ELR at 20751.

82. See David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985); Antonin Scalia, A Note on the Benzene Case, REG., July/Aug. 1980, at 25, 28 (noting that the nondelegation doctrine "is worth hewing from the ice"); United Autoworkers v. Occupational Safety & Health Admin., 938 F.2d 1310 (D.C. Cir. 1991); South Dakota v. Department of the Interior, 69 F.3d 878 (8th Cir. 1995), cert. granted, vacated & remanded, 519 U.S. 919 (1996).

83. See Ecclesiastes 1:9-10 ("there is no new thing under the sun").

84. 175 F.3d at 1027, 29 ELR at 21071.

85. See George F. Will, See You in Congress, WASH. POST, May 20, 1999, at A29. See also JOHN HART ELY, DEMOCRACY AND DISTRUST 131-34 (1980); Federal Power Comm'n v. New England Power Co., 415 U.S. 345, 352-53 (1974) (Marshall, J., concurring) (the doctrine "has been virtually abandoned by this Court for all practical purposes").

86. See American Trucking Ass'n, 175 F.3d at 1034, 29 ELR at 21071 remanding the O₃ rule, 62 Fed. Reg. 38863 (July 18, 1997), and the PM rule, 61 Fed. Reg. 65637 (Dec. 13, 1996).

87. 42 U.S.C. § 7409(b), (d), ELR STAT. CAA § 109(b), (d).

88. Id. § 7409(d), ELR STAT. CAA § 109(d).

89. Id. §§ 7408(a)(2), 7409(b)(1), ELR STAT. CAA §§ 108(a)(2), 109(b)(1).

90. 62 Fed. Reg. 38856 (July 18, 1997). The new standard is roughly equivalent to 0.09 ppm as an eight-hour average. See id. at 38858. For a detailed assessment of the PM standard, see Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV. 303, 325-30 (1999).

91. See 42 U.S.C. § 7409(d)(2), ELR STAT. CAA § 109(d)(2). The CASAC, a scientific body established pursuant to the CAA, also peer-reviewed EPA's own staff reports. American Trucking Ass'n, 175 F.3d at 1035, 29 ELR at 21072.

92. 62 Fed. Reg. at 38868.

93. See id. Thus, restrictions on activities that contribute to concentrations above 0.08 ppm would more likely reach controllable human activity rather than natural levels of O₃. See American Trucking Ass'n, 175 F.3d at 1060, 29 ELR at 21082 (Tatel, J., dissenting).

94. 62 Fed. Reg. at 38863. See Alec C. Zacaroli, Court Rulings Imperil EPA's Efforts to Clamp Down on Ozone Pollution, 30 Env't Rep. (BNA) 325, 326 (June 18, 1999).

95. Carol Browner, Testimony Before Senate Comm. on Environment and Public Works, 1997 WL 8219277 (Feb. 12, 1997).

96. American Trucking Ass'n, 175 F.3d at 1035-37, 29 ELR at 21072-73. The court conceded that EPA had examined appropriate factors regarding O₃'s effects on public health at various exposure levels—the severity of effects, certainty of effects, and size of population affected. Id. (citing 62 Fed. Reg. at 38883). See also Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1161, 10 ELR 20643, 20659 (D.C. Cir. 1980) (approving these three criteria in rejecting industry's argument that EPA should have considered costs and technological feasibility in setting NAAQS for lead).

97. See 175 F.3d at 1034, 1036|L|65727|21072}, 29 ELR at 21071, 21072. The court found the PM standard deficient on similar grounds. Id.

98. See id. at 1034, 29 ELR at 21071.

99. Id. at 1037, 29 ELR at 21073. See supra, note 7 (discussing "killer fog" incident).

100. Id.

101. Id. (citing J.W. Hampton & Co. v. United States, 276 U.S. 394 (1928), and Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935)).

102. J.W. Hampton & Co., 276 U.S. at 409.

103. Id. at 404, 407-08.

104. Schechter Poultry, 295 U.S. at 537. See supra notes 44, 45, and 47 and accompanying text (discussing Schechter Poultry).

105. 938 F.2d 1310 (D.C. Cir. 1991) (reviewing 29 U.S.C. § 652(8)).

106. See American Trucking Ass'n v. EPA, 175 F.3d 1027, 1037, 29 ELR 21071, 21073 (D.C. Cir. 1999) (citing Lockout/Tagout I, 938 F.2d at 1317). On remand, OSHA issued a new interpretation of the provision, requiring "a high degree of worker protection" once a "significant" safety risk was identified. The court subsequently found that this second regulatory attempt satisfied nondelegation concerns because it allowed deviation from maximum feasible stringency by only a "modest" amount. See United Auto Workers v. Occupational Safety & Health Admin., 37 F.3d 665, 669 (D.C. Cir. 1994) (Lock-out/Tagout II).

107. American Trucking Ass'n, 175 F.3d at 1058, 29 ELR at 21082 (discussing Lockout/Tagout I, 938 F.2d 1310) (emphasis added).

108. Id. at 1059-60, 29 ELR at 21082 (emphasis added). The majority had characterized EPA's rationale for choosing 0.08 ppm as no more than a bald assertion "that a less stringent standard would allow the relevant pollutant to inflict a greater quantum of harm on public health, and that a more stringent standard would result in less harm." Id. at 1035, 29 ELR at 21072.

109. See id. (citing 42 U.S.C. §§ 7408(a)(2), 7409(b)(1), ELR STAT. CAA § 108(a)(2), 109(b)(1)).

110. Id. at 1061, 29 ELR at 21083 (emphasis added).

111. Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 908, 31 ELR 20512, 20512-13 (2001).

112. Id. at 910-911, 31 ELR at 20514 (citing, inter alia, Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1148, 10 ELR 20643, 20651 (D.C. Cir. 1980)). The Court concluded that Congress would not have left this highly significant issue unaddressed, thereby delegating its resolution to EPA to do whatever it chose. Id. at 910, 31 ELR at 20513 (citing Christensen v. Harris County, 529 U.S. 576, 590 (2000) (Scalia, J., concurring)).

113. Id. at 912, 31 ELR at 20514.

114. Id. (citing J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)) (emphasis in original).

115. Id. at 912, 31 ELR at 20514 (emphasis in original).

116. Id. at 914, 31 ELR at 20515.

117. Id. (citing Touby v. United States, 500 U.S. 160, 163 (1991), requiring scheduling of drugs as "necessary to avoid an imminent hazard to the public safety," and Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 647, 10 ELR 20489, 20499 (1980), requiring workplace standards that ensure "no employee will suffer any impairment of health").

118. Id. at 913, 31 ELR at 20514-15.

119. Id. (citing Loving v. United States, 517 U.S. 748, 772-73 (1996) and United States v. Mazurie, 419 U.S. 544, 556-57 (1975)).

120. Id.

121. Id. at 913, 31 ELR at 20515.

122. Id. at 920, 31 ELR at 20517-18.

123. Id. at 921, 31 ELR at 20218.

124. Id.

125. Id. at 920, 31 ELR at 20517.

126. Id. A detailed analysis of the Framers' intent regarding legislative powers could help point the way to a more reasoned approach to resolving nondelegation concerns. Although the endeavor is beyond the scope of this Article, it seems highly unlikely that an outright prohibition on the delegation of policymaking authority was envisioned. For comments on Madison's flexible approach to separation of powers, see supra notes 19, 22-23.

127. Id. at 913, 31 ELR at 20514-15 (emphasis added).

128. Id. (citing Loving v. United States, 517 U.S. 748, 772-73 (1996) and United States v. Mazurie, 419 U.S. 544, 556-57 (1975)).

129. See THE AMERICAN HERITAGE DICTIONARY 1100 (2d College ed. 1985) (defining "scope" as, inter alia, range, breadth, or area).

130. See Sunstein, Nondelegation Canons, supra note 13, at 330.

131. 298 U.S. 238, 315, 331-35 (1936).

132. Id. See Robert W. Adler, American Trucking and the Revival (?) of the Nondelegation Doctrine, 30 ELR 10233, 10239, 10242 (Apr. 2000) (observing that the D.C. Circuit's application of the nondelegation doctrine seemed more a rule of construction to curtail agency discretion than a matter of constitutional law, and noting the inconsistency of this approach with Chevron).

133. As a rule of construction, Professor Sunstein states that the nondelegation canons occupy a relatively "limited office," 298 U.S. at 340, but he also describes them as a "ban" on Congress "from authorizing administrative agencies, or the executive branch, from making certain decisions." Id. at 342. I agree that the canons would operate as a ban on delegation in some cases. Abrogation of Indian treaties comes to mind. Surely a state, for example, cannot be given the authority to unilaterally abrogate treaty rights whenever it determines that x, y, or z condition, prescribed by congressional enactment, is fulfilled. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 29 ELR 20557 (1999); Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 9 ELR 20517 (1979). See also United States v. Dion, 476 U.S. 734, 734-740, 16 ELR 20676, 20676-77 (1986) (holding that Congress must express a clear intent to abrogate Indian treaties). The trust relationship between the United States and American Indian tribes, as well as inherent tribal sovereignty, necessitate direct action from Congress. See Seminole Nation v. United States, 316 U.S. 286, 296 (1942); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559-60 (1832). It is more difficult to envision an outright prohibition on any particular type of delegation to an executive agency, for if Congress is highly specific regarding the policy to be implemented, the agency is, by necessity, simply left to enforce the law, as envisioned in Article II.

134. See 467 U.S. at 837, 14 ELR at 20507.

135. See Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 913, 31 ELR 20512, 20515 (2001) (emphasis added). Compare St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 287 (1908) (upholding statute that required drawbars of uniform height in rail cars but left to the Interstate Commerce Commission the duty of adopting a standard fixed by an industry association) with Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935) (distinguishing St. Louis, I.M. & S.R. Co. as involving a delegation of mere "matters of a more or less technical nature" to the industry association).

136. See Schechter Poultry, 295 U.S. at 553; United Autoworkers v. Occupational Safety & Health Administration (Lockout/Tagout I), 938 F.2d 1310, 1317-18 (D.C. Cir. 1991). See also Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1315 (2000) (observing that Chevron deference is less likely when agency action affects an industry constituting a "significant portion of the American economy").

137. See Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 ARIZ. ST. L.J. 941, 1014-21 (2000) (discussing Schechter Poultry and Panama Refining).

138. See 121 S. Ct. at 914, 31 ELR at 20515. Had the Court found that costs should be considered in setting NAAQS, but that Congress had provided no guidance for weighing costs and public health effects, it may have been a more difficult case. In American Trucking, id. at 913, 31 ELR at 20514, the Court noted that even then-Justice Rehnquist, who believed that the provision in question in the Benzene case was an unconstitutional delegation of power, see Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 676, 10 ELR 20489, 20507 (1980) (Rehnquist, J., concurring), would have upheld it if the OSH Act precluded a consideration of costs, see American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 545, 11 ELR 20736 (1981) (Rehnquist, J., dissenting). The CAA is unique, however, in that it provides a significant role for states to determine how best to attain NAAQS through their state implementation plans, see 42 U.S.C. § 7410, ELR STAT. CAA § 110; thus, the economic effects of NAAQS vary depending on the mix of controls adopted by the states.

139. See Brown & Williamson Tobacco, 120 S. Ct. at 1314-15; AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 392-93 (1999); Solid Waste Agency of N. Cook County (SWANCC) v. Army Corps of Eng'rs, 121 S. Ct. 675, 683, 31 ELR 20382, 20384 (2001). For recent cases taking a restrictive view of Commerce Clause powers in general, see United States v. Morrison, 120 S. Ct. 1740 (2000) (invalidating the Violence Against Women Act as beyond the scope of the Commerce Clause); United States v. Lopez, 514 U.S. 549 (1995) (invalidating the Gun-Free School Zone Act as beyond the scope of the Commerce Clause).

140. 525 U.S. 366, 392-93 (1999).

141. Id. at 397 (quoting statement of GTE's counsel at oral argument). See Lisa Schultz Bressman, Schechter Poultry at the Millenium: A Delegation Doctrine for the Administrative State, 109 YALE L.J. 1399, 1435-36 (2000) (noting that the result in Iowa Utilities could be explained in terms of a nondelegation problem).

142. 525 U.S. at 390, 392. This remarkable opinion is the first time the Court invalidated regulations as unreasonable under step two of the Chevron inquiry. See id. at 392-93, 401 (Souter, J., dissenting in part) (observing that, once ambiguity is detected, "Chevron deference surely requires us to respect the Commission's conclusion").

143. 121 S. Ct. 675, 31 ELR 20382 (2001).

144. Id. at 683, 31 ELR at 20385.

145. Id. The Court adopted a similar approach in Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291, 1315 (2000), where it invalidated the Food and Drug Administration's regulation of tobacco products under Chevron step one: "Congress could not have intended to delegation a decision of such economic and political significance in so cryptic a fashion."

146. 33 U.S.C. § 1311(a), ELR STAT. FWPCA § 301(a).

147. See id. § 1362(7), ELR STAT. FWPCA § 502(7).

148. By some estimates, 20-30% of the nation's freshwater wetlands and 80% of wetlands in some states will be open to unrestricted development as a result of the ruling. See Opinion, A Wetlands Setback Court Puts States Rights Before Environment, RECORD OF N. NEW JERSEY, Jan. 16, 2001, at L10.

149. See Brief for Petitioner Solid Waste Agency of N. Cook County (SWANCC) v. Corps of Eng'rs, No. 99-1178, 2000 WL 1041190 (U.S. July 27, 2000). SWANCC argued that the Court should reject the Corps' assertion of "unbridled discretion to expand its own reach under the CWA…. A delegation of this magnitude would not withstand constitutional review." Id. at *97 n.20. However, it continued: "This Court need not decide that constitutional question, … for there is no evidence … that Congress meant the Corps to have sweeping quasi-legislative authority over waters unrelated to navigable waters." Id. The Corps responded that its interpretation did not implicate an unlawful delegation of legislative authority because the scope of its regulatory authority was defined by reference to the Commerce Clause. Brief for Respondent Corps of Engineers, 2000 WL 1369439, at *71-72 n.23. There is no mention of the doctrine in any of the published opinions.

150. See Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 913, 31 ELR 20512, 20512, 20515 (2001) (citing Loving v. United States, 517 U.S. 748, 772-73 (1996) and United States v. Mazurie, 419 U.S. 544 (1975)).

151. See 295 U.S. at 552 (Cardozo, J., concurring) (describing the President's power to adopt codes of fair competition under NIRA).

152. Loving, 517 U.S. at 751 (citing the Uniform Code of Military Justice, 10 U.S.C. §§ 818, 836(a), 856).

153. Id. at 772 (citing Mazurie, 419 U.S. at 556-57).

154. Mazurie, 419 U.S. at 556-57. Plaintiffs were nonmembers who owned a bar on fee lands within reservation boundaries. Id.

155. See Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 683, 10 ELR 20489, 20508 (1980) (upholding statute giving President authority to recapture "excessive profits"); Loving, 517 U.S. at 772 (noting that "had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President [as commander in chief], [the] argument that Congress failed to provide guiding principles … might have more weight"); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 307 (1936) (explaining that, in the area of foreign affairs, Congress "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved"). Cf. District No. 1, Marine Eng'rs Beneficial Ass'n v. Maritime Admin., 215 F.3d 37, 44 (D.C. Cir. 2000) (finding that constraints on delegation do not apply to external matters of foreign policy and national defense, even where power had been extended to an executive agency).

156. See American Trucking Ass'n v. EPA, 175 F.3d 1027, 1037, 29 ELR 21071, 21073 (D.C. Cir. 1999) (noting that no "special theories," such as "war powers … or the sovereign attributes of the delegatee [had been] asserted" to justify the "vague delegation" given in the CAA).

157. See Schechter Poultry, 295 U.S. at 541; Carter, 298 U.S. at 311.

158. See United States v. Midwest Oil, 236 U.S. 459, 471-72 (1915) (noting the President's national perspective and direct accountability to the voters: "[He] was in a position to know when the public interest required particular portions of the people's lands to be" set aside).

159. See 5 U.S.C. §§ 551-559, available in ELR STAT. ADMIN. PROC. See also Clinton v. New York, 524 U.S. 417, 489-90 (1998) (Breyer, J., dissenting) (noting the "important differences" between the delegation of power to agencies, which typically develop subsidiary rules to explain the general statutory language, "diminishing the risk that the agency will use the breath of a grant of authority as a cloak for unreasonable or unfair implementation," and to the president, but finding that the president's political accountability weighed against those concerns and that the Line Item Veto Act did not violate the nondelegation doctrine).

160. See 5 U.S.C. § 704, available in ELR STAT. ADMIN. PROC.; Dalton v. Specter, 511 U.S. 462, 468-70 (1994); Franklin v. Massachusetts, 505 U.S. 788, 796, 800-01 (1992).

161. Schechter Poultry, 295 U.S. at 537; Panama Refining Co. v. Ryan, 293 U.S. 388, 415 (1935).

162. See Mistretta v. United States, 488 U.S. 361, 376-77 (1989); J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394, 409 (1928); and Whitman v. American Trucking Ass'n, 121 S. Ct. 903, 913-14, 31 ELR 20512, 20515 (2001). See also Touby v. United States, 500 U.S. 160, 166 (1991) (rejecting nondelegation challenge to U.S. Attorney General's power to schedule controlled substances). In Touby, the petitioner argued that Congress should not be allowed to delegate its criminal authorities, providing an opening for the adoption of a nondelegation canon, but the Court did not address the issue. Id.

163. 16 U.S.C. § 431.

164. See Esplin v. William J. Clinton, Complaint for Declaratory Judgment and Injunctive Relief, Civ. No. 0148 PCT PGR (D. Ariz. filed Jan. 26, 2000); Utah Ass'n of Counties v. William J. Clinton, Complaint for Injunctive and Declaratory Relief, No. 2:97CV-0479B (D. Utah filed June 23, 1997); Mountain States Legal Found. v. William J. Clinton, First Amended Complaint, No. 2:97CV-0863G (D. Utah filed Dec. 15, 1997).

165. 16 U.S.C. § 431.

166. Id.

167. Esplin, supra note 164, Complaint for Declaratory Judgment and Injunctive Relief.

168. U.S. CONST. art. IV, § 3, cl. 2 (providing that "Congress shall have power to dispose of the territories and make all needful rules and regulations respecting the territory or other property belonging to the United States….").

169. See Esplin, supra note 164, PP118-119. Plaintiffs also raise a variety of assertions founded on "equal footing" and rather vague federalism themes. See id. PP73-77, 86-87, 140-42.

170. Utah Ass'n of Counties, supra note 164, Complaint for Injunctive and Declaratory Relief.

171. Mountain States Legal Found., supra note 164, First Amended Complaint.

172. See Utah Ass'n of Counties, supra note 164, P100 (citing Antiquities Act of 1906, 16 U.S.C. §§ 431-433); id., 1999 U.S. Dist. LEXIS 15852 (D. Utah Aug. 12, 1999) (rejecting argument that post-designation congressional ratification had authorized the President's action and denying government's motion to dismiss); Mountain States Legal Found., supra note 164, PP46-48 (alleging that Grand Staircase designation violates nondelegation doctrine). See also Mountain States Legal Found. v. George W. Bush, First Amended Complaint, No. 1:00CV02072 PLF (D.D.C. filed Jan. 26, 2001) (challenging the designation of Parashant and five other monuments as beyond the President's authority).

173. Proclamation No. 794, 35 Stat. 2175 (1908). The Grand Canyon subsequently became a national park by act of Congress. See 16 U.S.C. § 221. See also Cameron v. United States, 252 U.S. 450 (1920) (discussing history of designation).

174. Proclamation No. 2578, 57 Stat. 731 (1943). See 16 U.S.C. § 406d-1 (including portions of the Jackson Hole National Monument within the Grand Teton National Park); 16 U.S.C. § 482m (including portions of the Jackson Hole National Monument within the Teton National Forest). See also Wyoming v. Franke, 48 F. Supp. 890 (D. Wyo. 1945) (upholding the designation).

175. Proclamation No. 7265, 65 Fed. Reg. 2825 (Jan. 18, 2000) (designating the one million acre Grand Canyon-Parashant National Monument); Proclamation No. 6920, 61 Fed. Reg. 50223 (Sept. 24, 1996) (designating the 1.9 million acre Grand Staircase-Escalante National Monument). President Clinton created 19 new monuments, most of which were designated during the last year of his Administration. See Eric Pianin, Long Arm of the Government Rankles Western Landowners, WASH. POST, Apr. 29, 2001, at A5.

176. See United States v. Midwest Oil, 236 U.S. 459, 469-70 (1915); id. at 489 n.2 (Day, J., dissenting) (listing various withdrawals and permanent reservations).

177. See U.S. CONST. art. II, § 2, cl. 1; Loving v. United States, 517 U.S. 748, 772 (1996); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 307 (1936).

178. See United States v. San Francisco, 310 U.S. 16, 29 (1940). See also Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976) (describing Congress' broad powers under the Property Clause) and Camfield v. United States, 167 U.S. 518, 525 (1897) (noting that the power over public property is at least as extensive as "the police power of the several states").

179. See 448 U.S. at 683, 10 ELR at 20508 (Rehnquist, J., concurring).

180. See id. at 683 (citing Lichter v. United States, 334 U.S. 742, 783 (1948) (giving president authority to recapture "excessive profits" from war contracts)).

181. Id. at 684-85 (citing American Power & Light Co. v. Securities & Exch. Comm'n, 329 U.S. 90, 105 (1946); Buttfield v. Stranahan, 192 U.S. 470, 496 (1904)).

182. See United States v. Midwest Oil, 236 U.S. 459, 472-73 (1915) (affirming presidential withdrawal of public lands to preserve national oil reserves).

183. See United States v. Grimaud, 220 U.S. 506, 516-17 (1911) (concluding that it was "impracticable" for Congress to specify various details of forest management and upholding delegation to executive branch).

184. 236 U.S. 459, 468-69 (1915). President Taft's executive order took the form of a temporary withdrawal in aid of pending legislation regarding mineral development, but the Court had also upheld permanent executive reservations on numerous occasions. See id. at 475-76.

185. Id. at 469.

186. Id. at 471-72. "When it appeared that the public interest would be served by withdrawing … public domain, nothing could be more natural than to retain what the government already owned." Id. at 472.

187. See Grisar v. McDowell, 73 U.S. 363, 381 (1867) (citing statutes).

188. Ch. 451, § 24, 26 Stat. 1095 (1891).

189. Congress did not always approve of the manner in which the president wielded this power. Although general repeal efforts were rebuffed, presidential authority to create new reserves in six western states was eventually revoked. See Ch. 2907, 34 Stat. 1271 (1907). The evening before he signed the bill into law, President Theodore Roosevelt proclaimed 32 new forest reserves and enlarged existing reserves in the restricted states. See David Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, 22 NAT. RESOURCES J. 279, 286 (1982); PAUL W. GATES, HISTORY OF PUBLIC LAND DEVELOPMENT 580 (1968).

190. Act of June 25, 1910, ch. 421, § 1, 36 Stat. 847 (1910) (emphasis added) (repealed by Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701-1785, ELR STAT. FLPMA §§ 102-603). The Pickett Act attempted to further restrict presidential power by providing that withdrawals were to remain "open to exploration, discovery, occupation, and purchase under the mining laws…." See id.; 43 U.S.C. § 142.

191. See Getches, supra note 189, at 293-98; Portland General Elec. Co. v. Kleppe, 441 F. Supp. 859 (D. Wyo. 1977) (upholding the temporary withdrawal of three million acres of oil shale lands from appropriation). In Portland General Electric, the court stated that even if the Pickett Act curtailed the president's implied authority to make withdrawals, congressional acquiescence over the course of over 60 years had restored the power. Id. at 862.

192. See Midwest Oil, 236 U.S. at 470-72.

193. 220 U.S. at 516-17. See supra notes 40-41 and accompanying text.

194. See id. at 509 (citing Rev. Stat. 5388, U.S. Comp. Stat. 1901, pg. 3649, currently codified at 16 U.S.C. §§ 475, 551).

195. See id. at 516. See also Midwest Oil Co., 236 U.S. at 459 (recognizing that the president's power to withdraw public lands from extractive activities could be justified "as the exigencies of the public service required") (citing Grisar v. McDowell, 73 U.S. 363, 381 (1867)).

196. See Midwest Oil, 236 U.S. at 459; United States v. Light, 220 U.S. 523 (1911); Camfield v. United States, 167 U.S. 518, 525 (1897); and Kleppe v. New Mexico, 426 U.S. 529, 540, 6 ELR 20545, 20547 (1976).

197. See Midwest Oil, 236 U.S. at 474. See also Louis L. Jaffe, An Essay on Delegation of Legislative Power, 47 COLUM. L. REV. 561, 568 (1947) (noting that property management is not law making).

198. 426 U.S. 529, 6 ELR 20545 (1976).

199. Kleppe upheld the Wild Free-Roaming Horses and Burros Act as a valid exercise of the Property Clause power to protect resources integral to the public lands, in spite of alleged impacts on the traditional roles of state and local governments in regulating livestock. Id. at 540-41.

200. Camfield, 167 U.S. at 525. In Camfield, the Court upheld Congress' power to prevent the enclosure of public lands. Id. For an argument that the government's power over the public lands might be tempered by a countervailing public trust responsibility, see Zellmer, supra note 137, at 1032-36.

201. See Schoenbrod, supra note 82, at 1268, concluding that delegations regarding property

must be under goals statutes that grant broad discretion. Consider the example of building construction…. The legislature cannot deal with the myriad details involved in designing private buildings. How then could Congress write a set of rules that would positively tell the General Services Administration how to go about building the many government buildings?

202. 196 U.S. 119 (1905).

203. 30 U.S.C. § 22.

204. 196 U.S. at 125-26.

205. Id. See Jackson v. Roby, 109 U.S. 440, 441 (1883) (upholding provision that allows miners to make regulations not inconsistent with federal law for locating, recording, and retaining possession of a claim). U.S. mining laws are unique among public lands laws in that Congress intended many preexisting practices of the mining districts to continue. See JOHN D. LESHY, THE MINING LAW, A STUDY IN PERPETUAL MOTION 11 (1987).

206. See Schechter Poultry, 295 U.S. at 537.

207. 426 U.S. at 529.

208. 236 U.S. at 471. Although the Court did not explicitly address nondelegation or separation of powers in upholding President Taft's withdrawals in Midwest Oil, it noted that the government had "freely conceded the general proposition as to the lack of authority in the President to deal with the laws otherwise than to see that they are faithfully executed." Id.

209. 255 F. Supp. 382, 387-88 (D. Or. 1966). Linn Land involved consolidated cases, see id. at 385, one of which was reversed on other grounds, see Udall v. Battle Mountain Co., 385 F.2d 90 (9th Cir. 1967), cert. denied, 390 U.S. 957 (1968).

210. See 255 F. Supp. at 387 (citing the Taylor Grazing Act, 43 U.S.C. § 315f, and Executive Order No. 6910, which withdrew western public lands from settlement, location, sale, or entry).

211. Id. at 385, 388. "Certainly, the Constitution does not require Congress to foresee the countless situations to which it may wish a particular policy to be applied and to formulate specific rules for each problem as it arises." Id. at 388.

212. 552 F.2d 817, 7 ELR 20366 (8th Cir. 1977).

213. Id. at 823 n.8, 7 ELR at 20368, n.8 (citing United States v. Cassiagnol, 420 F.2d 868, 872-77 (4th Cir.), cert. denied, 397 U.S. 1044 (1970); Udall v. Washington, Virginia & Maryland Coach Co., 398 F.2d 765, 769-70 (D.C. Cir. 1968), cert. denied, 393 U.S. 1017 (1969)).

214. Id. (citing Camfield v. United States, 167 U.S. 518, 525 (1897); United States v. Alford, 274 U.S. 264, 266-67 (1927); McKelvey v. United States, 260 U.S. 353, 359 (1922)). The court specifically referred to the Park Service Organic Act, as well as the Voyageurs National Park Enabling Act: "The fundamental purpose of national parks … is to 'conserve the scenery and the natural historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.'" Id. at 822 n.7, 7 ELR at 20368 n.7 (citing 16 U.S.C. § 1; 16 U.S.C. § 160).

215. 843 F. Supp. 327, 24 ELR 21180 (W.D. Mich. 1994), aff'd, 89 F.3d 1269, 27 ELR 20001 (6th Cir. 1996). Plaintiffs' nondelegation claims were assessed in a Sixth Circuit panel decision that was vacated when the court accepted a petition for rehearing, see 70 F.3d 881, 26 ELR 20225 (6th Cir. 1995). The district court opinion was affirmed by an equally divided vote of the en banc court. 89 F.3d at 1269, 27 ELR at 20001.

216. 70 F.3d at 887, 26 ELR at 20228. See Organic Act of 1897, 16 U.S.C. § 551 (authorizing the Secretary to "regulate [national forest] occupancy and use and to preserve the forests thereon from destruction"); Wilderness Act of 1964, 16 U.S.C. § 1133(b) (agencies shall administer wilderness areas with a view toward "preserving the wilderness character"); and Michigan Wilderness Act § 5, Pub. L. No. 100-184, 101 Stat. 1274 (1987) (making certain Forest Service regulations are subject to "valid existing rights").

217. 70 F.3d at 888, 26 ELR at 20228-29.

218. Id. In his dissenting opinion on rehearing, Judge Danny J. Boggs agreed that there was no need to reach "extreme constitutional questions," but he nonetheless surmised that the nondelegation doctrine was not dead: "Congress could not enact the text of Joyce's Finnegans' Wake and then delegate to the Forest Service the power to administer it" because such a standard would be truly "meaningless." 89 F.3d at 1300, 27 ELR at 20018.

219. See CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 28-30, 149-50, 166-67 (1992) (describing economic effects of timber and mining enterprises); Michael Axline, Forest Health and the Politics of Expediency, 26 ENVTL. L. 613, 614 (1996) (assessing economics of logging public lands). See also Jan G. Laitos & Thomas A. Carr, The Transformation on Public Lands, 26 ECOLOGY L.Q. 140, 145 (1999) (explaining a transformation in the modern use of public lands, and noting that the economic benefits of recreation and preservation on public lands exceed those of commodity extraction).

220. See National Forest Management Act (NFMA), 16 U.S.C. § 1600-1687, ELR STAT. NFMA §§ 2-16; FLPMA, 43 U.S.C. §§ 1701-1785, ELR STAT. FLPMA §§ 102-603. As a result of the National Environmental Policy Act (NEPA), the NFMA, and FLPMA, "rulemaking is required, records are open, decision-making is shared, and the courts are available because public lands business is public business. It is the public to whom public lands managers are ultimately accountable." Charles F. Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. DAVIS L. REV. 269, 304 (1980).

221. See James R. Rasband, Utah's Grand Staircase: The Right Path to Wilderness Preservation?, 70 U. COLO. L. REV. 483, 560-61 (1999) (concluding that the Antiquities Act should be amended to include procedural safeguards, "achieving preservation should not come at the expense of a fair process").

222. 42 U.S.C. § 4332(C), ELR STAT. NEPA § 102.

223. See Alaska v. Carter, 462 F. Supp. 1155, 8 ELR 20903 (D. Alaska 1978) (holding that NEPA does not apply to monument designations because the president is not a federal agency). In contrast, statutory withdrawal provisions applicable to secretarial decisions require notice and an opportunity for public hearing, see 43 U.S.C. § 1714, "to regularize administrative practice that had in the past been used to effect withdrawals which were 'not always in the best interest of all the people.'" See Getches, supra note 189, at 318 (citing H.R. REP. NO. 94-1163 (1976), reprinted in 1976 U.S.C.C.A.N. 6175).

224. See 5 U.S.C. § 704, available in ELR STAT. ADMIN. PROC.; Dalton v. Specter, 511 U.S. 462, 468-70 (1994); Franklin v. Massachusetts, 505 U.S. 788, 796, 800-01 (1992).

225. See Wyoming v. Franke, 48 F. Supp. 890, 896 (D. Wyo. 1945) (admitting, in a pre-APA case, extra-record evidence of historic and scientific objects to supplement the cursory statements contained in the presidential proclamation).

226. See John D. Leshy, The Babbitt Legacy at the Department of the Interior: A Preliminary View, 31 ENVTL. L. 199, 217-18 (2001).

227. For a discussion of congressional efforts to amend the statute, see Rasband, supra note 221, at 531-32, 555; Zellmer, supra note 137, at 1046 n.590.

228. See Rasband, supra note 221, at 560 (extolling the virtues of public process, and noting that, though the Grand Staircase-Escalante National Monument may well be regarded as one of the "jewels" of our national monument system, "like the collection of old world antiquities in the British Museum [it] is forever tarnished by its method of acquisition").

229. In the event that legislative or regulatory procedures were adopted, emergency powers similar to those found in FLPMA, allowing temporary withdrawals where necessary to curtail imminent extractive activities until public processes are complete, should be included. See 43 U.S.C. § 1714(e), ELR STAT. FLPMA § 204(e).

230. 120 S. Ct. 1291 (2000).

231. See Midwest Oil, 236 U.S. at 471 and Brown & Williamson Tobacco, 120 S. Ct. at 1330-31 (Breyer, J., dissenting). Although a lame duck president may be less accountable than one who acts during the first term, presidential action is likely to be constrained by the knowledge that controversial decisions will be attributed to the president's political party regardless of timing.

232. See United States v. Locke, 471 U.S. 84, 104-105 (1985) (noting that unpatented mining claims are held with knowledge of the government's "substantial" regulatory power; thus, no reasonable expectation had been impaired when Congress exercised that power by requiring claims to be filed); United States v. Fuller, 409 U.S. 488 (1973) (holding that the government need not compensate rancher for loss of value added to his fee lands by adjacent federal grazing lands in light of clear congressional intent that grazing permits create no right in the public lands); Linn Land Co. v. Udall, 255 F. Supp. 382, 387-88 (D. Or. 1966) (concluding that, once plaintiffs' nondelegation challenge to the withdrawal of lands under the Taylor Grazing Act had been rejected, their Fifth Amendment due process claims must also fall in light of the Secretary's extensive Property Clause powers). See also Schoenbrod, supra note 82, at 1265-69 (explaining that mere expectations to use public property have not been treated as fully protected property interests under the Fifth and Fourteenth Amendments).

233. Samuel Taylor Coleridge, The Rime of the Ancient Mariner (1798), in DAVID PERKINS, ENGLISH ROMANTIC WRITERS 406 (1967).

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