Friday, March 12, 2021

Robert Jackson and the Non-Delegation Doctrine

Gerard N. Magliocca

I am working on a draft paper called "Robert Jackson's Non-Delegation Doctrine." The paper argues that Jackson thought that there was a non-delegation doctrine that applied to only congressional delegations to the President himself (as opposed to executive agencies and independent boards). I based this conclusion on two sources. First, a brief that Jackson wrote as Solicitor General in Currin v. Wallace (a 1939 case) in which he made this argument in a comprehensive fashion. Second, Jackson's concurrence in Youngstown, in which he said that Category One cases were subject to non-delegation limits, if you read the language carefully and consider what he says in Footnote Two of that opinion.

Now I have a third piece of evidence--Jackson's draft of the Youngstown concurrence. Adam White, who wrote an excellent article back in 2006 about Jackson's drafts of the opinion, was kind enough to send me a scan of the early drafts. (He gets more than a hat-tip from me--more like a bow.). Here is what Jackson said in an early draft about what became Category One (I've underlined the relevant part):

"Where the President acts in accord with an express enactment or policy of Congress, he can invoke for its support the sum of his own powers plus the sum of congressional powers at their maximum. Even so, it may be found unconstitutional. See Railroad Retirement Board v. Alton R. Co., 295 U.S. 330; Panama Refining Co. v. Ryan, 293 U.S. 389; Carter v. Carter Coal Co., 239; United States v. Butler, 297 U.S. 1; Schechter Poultry Co. v. United States, 295 U.S. 495.

The inclusion of Panama Refining is especially telling here because (unlike the other cases) that holding was only about the non-delegation doctrine. Jackson emphasized in his Currin brief, though, that the case involved a delegation to the President himself (under the National Industrial Recovery Act) rather than to an agency or some other official.

Later, Jackson reformulated this section and dropped the cites to these anti-New Deal cases. In Footnote Two of the opinion, which relates to Category One cases, he instead concentrated on other examples such as Curtiss-Wright and a fascinating opinion by Augustus Hand in the Second Circuit. Still, he made clear that the President could exercise only "all that Congress may delegate" and that there were "strict limits" on Congress's ability to delegate power over domestic affairs to the President himself.

Anyway, I hope to have this draft ready for circulation by the end of the month. 


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