Monday, March 13, 2017

A Modest Revision of the Accepted Wisdom About the Nondelegation Doctrine

Mark Tushnet

Cass Sunstein's quip that the nondelegation doctrine had one good year -- 1935, the year of Panama Refining and Schechter -- is not quite right. Carter v. Carter Coal, decided in 1936, held the Bituminous Coal Act unconstitutional on two separate grounds, one of which was a violation of the nondelegation doctrine, understood as a requirement of due process rather than as flowing from ideas about the separation of pwoers. (Schechter also relied on two grounds for invalidating the National Industrial Recovery Act.)

Justice Sutherland's treatment of nondelegation in Carter v. Carter Coal is more pointed about the "class legislation" nature of the delegation than Schechter:

"The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form, for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. The record shows that the conditions of competition differ among the various localities. In some, coal dealers compete among themselves. In other localities, they also compete with the mechanical production of electrical energy and of natural gas. Some coal producers favor the Code; others oppose it, and the record clearly indicates that this diversity of view arises from their conflicting and even antagonistic interests. The difference between producing coal and regulating its production is, of course, fundamental. The former is a private activity; the latter is necessarily a governmental function, since, in the very nature of things, one person may not be entrusted with the power to regulate the business of another, and especially of a competitor."

Sutherland calls this a violation of the due process clause, but, in addition to using the phrase "legislative delegation in its most obnoxious form," he introduces the discussion by saying that the statute "delegates the power to fix maximum hours of labor to a part of the producers and the miners," and he cites the pages in Schechter relying on the nondelegation doctrine.

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