1. The Scope of Executive Power

            The federal government is generally one of enumerated powers. Congress has those powers given it by Article I, and the judiciary has those powers given it by Article III. The President (and executive agencies) similarly has those powers bestowed by Article II. It is common wisdom that the legislature enacts statutes and that the executive branch implements and enforces them. However, the apparent simplicity of this description of the executive function dissolves into ambiguity when one tries to apply it to many real world situations.

The President can act pursuant to a direct grant of authority from Article II (e.g., appoint an ambassador) or act pursuant to a grant of authority from Congress. There is no controversy surrounding executive authority to enforce a law when Congress delegates a clear standard to the executive, by, for example, setting specific tax rates or criminalizing the interstate trafficking of specific drugs. However, often the congressional delegation to the executive branch is quite vague. In such a situation it is difficult to determine whether or not the executive branch is implementing the congressional standard or legislating its own. The nondelegation doctrine holds that Congress cannot delegate its authority to legislate to the executive. While modern courts agree that nondelegation is the proper rule in theory, there is disagreement over when it actually has occurred. Modern courts have been reluctant to find that impermissible delegation of legislative authority has occurred at all.

For example, many portions of the Clean Air Act dictate precisely what the Environmental Protection Agency (EPA) is supposed to do. 42 U.S.C. § 7511(a)(1) sets out specific dates by which various areas must be in compliance with applicable ozone levels or face liability. 42 U.S.C. § 7412(b)(1) lists over 150 different chemicals that Congress considers dangerous and orders the EPA to develop appropriate emission standards for each of them.

However, the criterion that is to be followed in developing the emission standards, 42 U.S.C. § 7409(b)(1), is far from precise:

National primary ambient air quality standards, prescribed under subsection (a) of this section shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. . . .

Does such a standard impermissibly delegate legislative authority to the EPA?

Whitman v. American Trucking Associations, Inc. (2001) involved a challenge to standards set for ozone and particulate matter emissions by the EPA. The plaintiffs contended that the Clean Air Act required the EPA to consider implementation costs before it adopted an emission standard. They also argued that the statute impermissibly delegated legislative authority to the EPA. The portion of the opinion addressing the nondelegation doctrine is set out below.

Whitman v. American Trucking Associations, Inc.

531 U.S. 457 (2001)

[Majority: Scalia, Rehnquist (C.J.), Kennedy, Ginsburg, O’Connor, Thomas, Stevens, and Breyer. Concurring: Thomas. Concurring (in part): Stevens, Breyer, and Souter.

Justice Scalia delivered the opinion of the Court. . . .

1. Section 109(a) of the CAA [Clean Air Act], . . . requires the Administrator of the EPA to promulgate NAAQS [National Ambient Air Quality Standards] for each air pollutant for which “air quality criteria” have been issued. Once a NAAQS has been promulgated, the Administrator must review the standard (and the criteria on which it is based) “at five-year intervals” and make “such revisions . . . as may be appropriate.” § 109(d)(1). These cases arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter and ozone. . . . American Trucking Associations, Inc., . . . challenged the new standards in the Court of Appeals for the District of Columbia Circuit. . . .

The District of Columbia Circuit accepted some of the challenges and rejected others. It agreed . . . that § 109(b)(1) delegated legislative power to the Administrator in contravention of the United States Constitution, Art. I, § 1, because it found that the EPA had interpreted the statute to provide no “intelligible principle” to guide the agency’s exercise of authority. The court thought, however, that the EPA could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of § 109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to the agency. (On this delegation point, Judge Tatel dissented, finding the statute constitutional as written.) On the second issue that the Court of Appeals addressed, it unanimously rejected respondents’ argument that the court should depart from the rule of Lead Industries Assn., Inc. v. EPA (D.C. Cir. 1980), that the EPA may not consider the cost of implementing a NAAQS in setting the initial standard. . . .

The Administrator and the EPA petitioned this Court for review. . . . Respondents conditionally cross-petitioned for review. . . . We have now consolidated the cases for purposes of decision. . . .

III. Section 109(b)(1) of the CAA instructs the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect the public health.” The Court of Appeals held that this section as interpreted by the Administrator did not provide an “intelligible principle” to guide the EPA’s exercise of authority in setting NAAQS. “[The] EPA,” it said, “lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much.” The court hence found that the EPA’s interpretation (but not the statute itself) violated the nondelegation doctrine. We disagree.

In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, § 1, of the Constitution vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States.” This text permits no delegation of those powers, Loving v. United States (1996) (Scalia, J., concurring in part and concurring in judgment), and so 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.” J.W. Hampton, Jr., & Co. v. United States (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute. Both Fahey v. Mallonee (1947), and Lichter v. United States (1948), mention agency regulations in the course of their nondelegation discussions, but Lichter did so because a subsequent Congress had incorporated the regulations into a revised version of the statute, and Fahey because the customary practices in the area, implicitly incorporated into the statute, were reflected in the regulations. 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 had omitted — would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the answer.

We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a minimum requires that “[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air.” Requisite, in turn, “mean[s] sufficient, but not more than necessary.” These limits on the EPA’s discretion are strikingly similar to the ones we approved in Touby v. United States (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was “‘necessary to avoid an imminent hazard to the public safety.'” They also resemble the Occupational Safety and Health Act of 1970 provision requiring the agency to “‘set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health'” — which the Court upheld in Industrial Union Dept., AFL-CIO v. American Petroleum Institute (1980), and which even then-Justice Rehnquist, who alone in that case thought the statute violated the nondelegation doctrine (opinion concurring in judgment), would have upheld if, like the statute here, it did not permit economic costs to be considered.

The scope of discretion § 109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.” See Panama Refining Co. v. Ryan (1935); A.L.A. Schechter Poultry Corp. v. United States (1935). We have, on the other hand, upheld the validity of § 11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders.” American Power & Light Co. v. SEC (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that “‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.'” Yakus v. United States (1944). And we have found an “intelligible principle” in various statutes authorizing regulation in the “public interest.” See, e.g., National Broadcasting Co. v. United States (1943) (Federal Communications Commission’s power to regulate airwaves); New York Central Securities Corp. v. United States (1932) (Interstate Commerce Commission’s power to approve railroad consolidations). In short, we have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Mistretta v. United States (1989) (Scalia, J., dissenting).

It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. See Loving v. United States (1967); United States v. Mazurie (1975). 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 governing grain elevators, see 42 U.S.C. § 7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a “determinate criterion” for saying “how much [of the regulated harm] is too much.” In Touby, for example, we did not require the statute to decree how “imminent” was too imminent, or how “necessary” was necessary enough, or even — most relevant here — how “hazardous” was too hazardous. Similarly, the statute at issue in Lichter authorized agencies to recoup “excess profits” paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are “nonthreshold” pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. “[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action.” Mistretta v. United States (Scalia, J., dissenting). Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is “requisite” — that is, not lower or higher than is necessary — to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.

We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power. It will remain for the Court of Appeals — on the remand that we direct for other reasons — to dispose of any other preserved challenge to the NAAQS under the judicial-review provisions contained in 42 U.S.C. § 7607(d)(9). . . .

1. . . . To summarize our holdings in these unusually complex cases: (1) The EPA may not consider implementation costs in setting primary and secondary NAAQS under § 109(b) of the CAA. 2) Section 109(b)(1) does not delegate legislative power to the EPA in contravention of Art. I, § 1, of the Constitution. (3) The Court of Appeals had jurisdiction to review the EPA’s interpretation of Part D of Title I of the CAA, relating to the implementation of the revised ozone NAAQS. (4) The EPA’s interpretation of that Part is unreasonable.

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Thomas, concurring.

I agree with the majority that § 109’s directive to the agency is no less an “intelligible principle” than a host of other directives that we have approved. I also agree that the Court of Appeals’ remand to the agency to make its own corrective interpretation does not accord with our understanding of the delegation issue. I write separately, however, to express my concern that there may nevertheless be a genuine constitutional problem with § 109, a problem which the parties did not address.

The parties to these cases who briefed the constitutional issue wrangled over constitutional doctrine with barely a nod to the text of the Constitution. Although this Court since 1928 has treated the “intelligible principle” requirement as the only constitutional limit on congressional grants of power to administrative agencies, see J.W. Hampton, Jr., & Co. v. United States (1928), the Constitution does not speak of “intelligible principles.” Rather, it speaks in much simpler terms: “All legislative Powers herein granted shall be vested in a Congress.” U.S. Const., Art. 1, § 1 (emphasis added). I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than “legislative.”

As it is, none of the parties to these cases has examined the text of the Constitution or asked us to reconsider our precedents on cessions of legislative power. On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.

Justice Stevens, with whom Justice Souter joins, concurring in part and concurring in the judgment.

Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, the Court convincingly explains why the Court of Appeals erred when it concluded that § 109 effected “an unconstitutional delegation of legislative power.” American Trucking Assns., Inc. v. EPA (D.C. Cir. 1999) (per curiam). I wholeheartedly endorse the Court’s result and endorse its explanation of its reasons, albeit with the following caveat.

The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is “legislative” but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not “legislative power.” Despite the fact that there is language in our opinions that supports the Court’s articulation of our holding, I am persuaded 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.”[1]

The proper characterization of governmental power should generally depend on the nature of the power, not on the identity of the person exercising it. See Black’s Law Dictionary 899 (6th ed. 1990) (defining “legislation” as, inter alia, “[f]ormulation of rule[s] for the future”); 1 K. Davis & R. Pierce, Administrative Law Treatise § 2.3, p. 37 (3d ed. 1994) (“If legislative power means the power to make rules of conduct that bind everyone based on resolution of major policy issues, scores of agencies exercise legislative power routinely by promulgating what are candidly called ‘legislative rules'”). If the NAAQS that the EPA promulgated had been prescribed by Congress, everyone would agree that those rules would be the product of an exercise of “legislative power.” The same characterization is appropriate when an agency exercises rulemaking authority pursuant to a permissible delegation from Congress.

My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested “All legislative Powers” in the Congress, Art. I, § 1, just as in Article II they vested the “executive Power” in the President, Art. II, § 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others. See Bowsher v. Synar (1986) (Stevens, J., concurring in judgment) (“Despite the statement in Article I of the Constitution that ‘All legislative powers herein granted shall be vested in a Congress of the United States,’ it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers”); INS v. Chadha (1983) (White, J., dissenting) (“[L]egislative power can be exercised by independent agencies and Executive departments . . .”); 1 Davis & Pierce, Administrative Law Treatise § 2.6, 66 (“The Court was probably mistaken from the outset in interpreting Article I’s grant of power to Congress as an implicit limit on Congress’ authority to delegate legislative power”). Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as “Executive” even though not exercised by the President. Cf. Morrison v. Olson (1988) (Scalia, J., dissenting) (arguing that the independent counsel exercised “executive power” unconstrained by the President).

It seems clear that an executive agency’s exercise of rulemaking authority pursuant to a valid delegation from Congress is “legislative.” As long as the delegation provides a sufficiently intelligible principle, there is nothing inherently unconstitutional about it. Accordingly, while I join Parts I, II, and IV of the Court’s opinion, and agree with almost everything said in Part III, I would hold that when Congress enacted § 109, it effected a constitutional delegation of legislative power to the EPA.

Justice Breyer, concurring in part and concurring in the judgment.[Omitted.]

 

^[1]. See Mistretta v. United States (1989) (“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society . . . Congress simply cannot do its job absent an ability to delegate power . . .”). See also Loving v. United States (1996) (“[The nondelegation] principle does not mean . . . that only Congress can make a rule of prospective force”); 1 K. Davis & R. Pierce, Administrative Law Treatise § 2.6, p. 66 (3d ed. 1994) (“Except for two 1935 cases, the Court has never enforced its frequently announced prohibition on congressional delegation of legislative power”).