How Should The Non-Delegation Doctrine and the Major Question Doctrine Apply to Foreign Affairs?

In an earlier post, I observed that Learning Resources is not really a constitutional law case. The bulk of the Chief Justice’s controlling opinion focuses on statutory interpretation, sprinkled with some major question analysis. But there is very little straight-up conlaw.

Justice Thomas, as usual, is in a league of his own. He wrote a through study of how the non-delegation doctrine ought to apply to different types of enumerated powers. In short, Congress cannot delegate “core” powers to the President because the exercise of those powers can deprive people of the private rights of life, liberty, and property. By contrast, Congress can delegate “non-core” powers to the President because the exercise of those powers would, at most, violate public rights, which are mere privileges, and would not deprive people of life, liberty, and property. I think you need to read the entire dissent to understand the full breadth of Thomas’s vision, but these paragraphs offers a succinct summary:

The Constitution’s separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the nondelegation doctrine, is rooted in the Constitution’s Legislative Vesting Clause and Due Process Clause. Art. I, §1; Amdt. 5. Both Clauses forbid Congress from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property. Neither Clause prohibits Congress from delegating other kinds of power. Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President. Congress has done so repeatedly since the founding, with this Court’s blessing.

The power to impose duties on imports can be delegated. At the founding, that power was regarded as one of many powers over foreign commerce that could be delegated to the President. Power over foreign commerce was not within the core legislative power, and engaging in foreign commerce was regarded as a privilege rather than a right. Early Congresses often delegated to the President power to regulate foreign commerce, including through duties on imports. As I suggested over a decade ago, the nondelegation doctrine does not apply to “a delegation of power to make rules governing private conduct in the area of foreign trade,” including rules imposing duties on imports. Department of Transportation v. Association of American Railroads (2015) (opinion concurring in judgment). Therefore, to the extent that the Court relies on “‘separation of powers principles’” to rule against the President at 8 (opinion of Roberts, C. J.), it is mistaken.

At first blush, there is something counterintuitive about Thomas’s theory. The powers listed in Article I, Section 8 would have to be bifurcated based on a line that appears nowhere in the text: core, and non-core. The majority opinion says that the “power of the purse” is a “core congressional power.” And as Justice Gorsuch notes in his concurrence, the text of Article I, Section 8, lists all of the powers in one block.

Section 1 of Article I vests “[a]ll legislative Powers herein granted” in Congress and no one else. Section 8 proceeds to list those powers in detail and without differentiation. Neither provision speaks of some divide between true legislative powers touching on “life, liberty, or property” that are permanently vested in Congress alone and “other kinds of power[s]” that may be given away and possibly lost forever to the President.

That was my first blush. But after stewing on the matter for a few days, Thomas starts to make sense of something I have long intuited: not all of the powers in Article I, Section 8 are actually legislative; some are executive in nature. Here, Justice Thomas cites Michael McConnell’s discussion of the King’s “prerogative” power:

Congress also has many powers that are not subject to the nondelegation doctrine. “We now think of the powers listed in Article I, Section 8 as quintessentially legislative powers, but many of them were actual, former, or asserted powers of the Crown, which the drafters decided to allocate to the legislative branch.” M. McConnell, The President Who Would Not Be King (2020) (McConnell); accord, Zivotofsky v. Kerry (2015) (Thomas, J., concurring in judgment in part and dissenting in part). These include the powers to raise and support armies, to fix the standards of weights and measures, to grant copyrights, to dispose of federal property, and, as discussed below, to regulate foreign commerce. Art. I, §8; Art. IV, §3. None of these powers involves setting the rules for the deprivation of core private rights. Blackstone called them “prerogative” powers, and sometimes “executive.” By one count, 13 of the 29 powers given to Congress in Article I were powers that “Blackstone described as ‘executive’ powers.”

Thomas shows that the early Congresses delegates to the President the power to exercise these non-core powers without limitation.

For most of American history, the nondelegation doctrine was understood not to apply to these powers. Contra (Gorsuch, J., concurring). “The early congresses felt free to delegate certain powers to President Washington in broad terms.” McConnell 333. Thus, the Constitution gives Congress the power to support armies, Art. I, §8, cl. 12, but Congress in 1789 delegated to the President the power to establish regulations for benefits to veterans wounded in the Revolutionary War. The Constitution gives Congress the power to grant patents, Art. I, §8, cl. 8, but Congress in 1790 delegated to executive officials the power to grant patents in their discretion. The Constitution gives Congress the power to borrow money, Art. I, §8, cl. 2, but Congress in 1790 delegated to the President the power to borrow up to $12 million on behalf of the United States in his discretion. The Constitution gives Congress the power to raise armies, Art. I, §8, cl. 12, but Congress in 1791 delegated to the President the power to raise an army of 2,000 troops in his discretion. And, as I explain further below, the Constitution gives Congress the power to regulate foreign commerce, Art. I, §8, cl. 3, but early Congresses often delegated to the President the power to regulate foreign commerce.

I’ve lost track of the literature studying how the early Congresses delegated power. But maybe one way to make sense of some of these statutes is that Congress could delegate what were executive “prerogative” powers without regard to non-delegation concerns. I need to give this topic more thought.

As for the major question doctrine, I think Justice Kavanaugh has the better argument. It should have no applicability on the foreign affairs context.

Second, in any event, the Court has never before applied the major questions doctrine in the foreign affairs context, including foreign trade. Rather, as Justice Robert Jackson summarized and remains true, this Court has always recognized the “‘unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed.’ ” Youngstown Sheet & Tube Co. v. Sawyer (1952) (concurring opinion) (quoting United States v. Curtiss-Wright Export Corp. (1936)). In foreign affairs cases, courts read the statute as written and do not employ the major questions doctrine as a thumb on the scale against the President.

Kavanaugh is certainly correct that Roberts is wrong to extend the MQD to foreign affairs for the first time without much consideration.

The Chief Justice’s opinion’s reliance on the major questions doctrine in this foreign affairs case is a first—a novel and unprecedented use of the major questions doctrine to invalidate Presidential action taken pursuant to congressional authorization in the foreign affairs area. I firmly disagree with that use of the major questions doctrine here. In the foreign affairs context, including tariffs, the longstanding rule is simple: Interpret the statute as written, not with a thumb on the scale against the President.

I think I’m done writing about Learning Resources for now. Let’s see what tomorrow brings.

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