by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.
I. Delegation of Regulatory Power
The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.