The Weak Nondelegation Doctrine and American Trucking Associations V. EPA

I. INTRODUCTION "A marked tendency of modern legislation is to deal with regulatory problems by setting forth less frequently in the legislation itself the particular rules that shall control."1 James Landis wrote those words in 1938, and they are just as true today as they were then. Landis's statement highlights the conflict underlying the legal and political debate over whether Congress should be allowed to pass legislation that does not set forth "the particular rules that shall control."2 Congress delegates legislative authority when it refuses to set forth controlling rules and requires another branch to do so.3 The "strong nondelegation doctrine" prohibits such delegations of legislative authority to another branch.4 This doctrine is a valid constitutional principle, and courts continue to discuss it. However, notwithstanding the doctrine's constitutional support and its verbal acknowledgement by courts, strong nondelegation, with few exceptions, has not actually been applied by courts. Since courts do not apply the strong nondelegation doctrine, Congress is allowed to continue to delegate tremendous decision-making power to the executive branch. Additionally, because courts have not, do not, and likely will not, apply the strong nondelegation doctrine any time soon, it is simply unworkable. Under the status quo-in which broad delegations of legislative authority are upheld-administrative agencies often possess significant decision-making discretion, and those agencies sometimes abuse the discretion given them. If the only options available to the courts were application of the strong nondelegation doctrine or maintenance of the status quo, the status quo would likely prevail, notwithstanding its associated problems. This is the case because application of the strong nondelegation doctrine would require courts to declare as unconstitutional many current statutes that delegate legislative power. Fortunately, another option exists. The so-called "weak nondelegation doctrine" allows Congress to delegate legislative authority to an agency if the agency thereafter takes action to sufficiently narrow its own discretion under the statute. For instance, the D.C. Circuit recently decided American Trucking Associations n. EPA ("American Trucking"),5 and held that the Environmental Protection Agency's ( "EPA" ) interpretation of the Clean Air Act ("CAA") violated the nondelegation doctrine because the EPA did not articulate an intelligible principle to limit the discretion given by the CAA.6 The D.C. Circuit applied weak nondelegation in this case as an alternative to strong nondelegation. The weak nondelegation doctrine is a desirable alternative to strong nondelegation because it does not prevent congressional delegations of legislative power, but it can correct some of the more serious problems associated with those delegations. Part II discusses the nondelegation doctrine's background, including its constitutional foundations and the case law that has developed the doctrine. Part III examines the American Trucking decision, including a discussion of the case's statutory and regulatory context, an examination of the case's holding and possible rationales for the holding, and an analysis of how the majority's decision supports the weak nondelegation doctrine. Part IV examines how weak nondelegation can be defended against criticism from both strong nondelegation supporters and nondelegation opponents. It then illustrates how Judge Tatel's American Trucking dissent, as well as the United States Supreme Court and D.C. Circuit case law, support weak nondelegation. Finally, it discusses possible practical implications of the American Trucking decision's application of weak nondelegation. This Note concludes that, instead of perpetuating the stalemated argument over whether strong nondelegation should be resurrected, courts should adopt the weak nondelegation doctrine as a workable and desirable alternative that can be supported by the Constitution, case law, and public policy. …