Amicus Curiae Brief — Gundy v. United States (No. 17-6086)

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No. 17-6086

In The

Supreme Court of the Anited States

HERMAN AVERY GUNDY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

BRIEF OF AMICUS CURIAE INSTITUTE

FOR JUSTICE IN SUPPORT OF REVERSAL

INSTITUTE FOR JUSTICE

SHELDON GILBERT*

DANA BERLINER

901 North Glebe Road

Suite 900

Arlington, Virginia 22203

(703) 682-9320

iIbert@ij.org

*Counsel of Record

Counsel for Amicus Curiae

Institute for Justice

QUESTION PRESENTED

Whether the Sex Offender Registration and Notifica-

tion Act’s delegation to the Attorney General in 34

U.S.C. § 20913(d) violates the constitutional nondele-

gation doctrine.

‘3

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................cc0000000 i

TABLE OF AUTHORITIES .......................cccc00000s v

INTEREST OF AMICUS CURIAE...................... l

SUMMARY OF THE ARGUMENT ..................... l

— 4

I. Federal Courts Have Abandoned the Non-

delegation Doctrine, and Significant Law-

making Power is Now Concentrated in the

IED cccstndsnacntsncestscasersecesnccssces 5

A. The Modern Intelligible Principle Test

Allows the Executive Branch to Make

Law and Decide Policy......................... 6

B. Although Federal Courts Now Treat the

Nondelegation Doctrine as a Dead Let-

ter, Data Show Federal Courts Rou-

tinely Enforced Nondelegation For a

Century, and State Courts Still Do ....... 10

C. Lawmaking by Regulatory Bodies Now

lars in Annual Costs.........................00. 12

D. Congressional > a Have Re-

Il.

TABLE OF CONTENTS — Continued

Page

1. The abundance of federal criminal

law is a recent phenomenon ........... 15

2. Examples from the 300,000 regula-

tory crimes show agencies criminal-

ize harmless, garden-variety private

Gi cicenetententcrnsenstensentiseseneeneesess 16

3. The targeted prosecution of the

Shechter Brothers shows the threat

that regulatory criminalization pose,

Ce iettenanseuicnnssnvistcicesincmnsn 21

The Court Should Adopt an Originalist

Nondelegation Test Rooted in the Text,

Structure, and History of the Constitu-

tion’s Vesting Clauses........................0...000. 26

A. The Constitution Does Not Expressly

or Implicitly Authorize Congress to

Delegate Away the Exclusively Legis-

lative Power to Regulate Private Con-

NEB cccccertsennsespinieetsemnnnematinnnimene 27

1. The Constitution does not expressly

authorize Congress to delegate its

exclusively legislative powers.......... 28

2. The Constitution does not implic-

itly authorize Congress to delegate

its exclusively legislative powers.... 30

B. Congress May Not Delegate to the Ex-

ecutive the Authority to Establish

Generally Applicable Rules Governing

Pe ee acsenvevencnssevevesemanesntinewe 31

TABLE OF CONTENTS — Continued

Page

C. Congress May Not Delegate to the Ex-

ecutive the Authority to Make Law on

Important, Complex Subjects.............. 33

D. Because the Separation of Powers Ex-

ists to Protect Liberty, In Close Cases,

the Tie Should Go to Liberty............... 35

eI icrnenicinisesenssensemneinnanedeesaminasasusiesen 38

TABLE OF AUTHORITIES

Page

CASES

A. L. A. Schechter Poultry Corp. v. United States,

ee ceenernscnricorensicsemnmtententennenes passim

Am. Power & Light Co. v. SEC, 329 US. 90

iti hs saieiachtiiehineseheiptsieenriantinieeninidicsineietiiinineniaciainiaiil 8, 27, 33

Askew v. Cross Key Waterways, 372 So.2d 913

ns hit crisiiracienaeii ei dniaai neat aiuaaibtaameeatems 11

Bond v. United States, 134 S. Ct. 2077 (2014)........... 31

Clinton v. City of New York., 524 U.S. 417 (1998) ....... 35

Dep't of Transp. v. Ass’n of Am. R.R., 135 S. Ct.

IT icsincisiahinsreeinsitintapmminiiitintisitinematias 4, 31, 32, 36

FDA v. Brown & Williamson Tobacco Corp., 529

ae een NnD 34

FPC v. Hope Nat. Gas Co., 320 U.S. 591 (1944) ........... 8

INS v. Chadha, 462 U.S. 919 (1983)..................... 29, 36

J.W. Hampton, Jr., & Co. v. United States, 276

ESSE CES SL 8

King v. Burwell, 135 S. Ct. 2480 (2015) ............... 20, 34

Marshall Field & Co. v. Clark, 143 US. 649

ri iliiseciassncanioncnatiitnesntisistticniinsibaaiaaatiiniatiaiaumnttiiiiaaicell 5, 35

Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816)......... 28

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

SESE AR keer See Sa nee ae 27

Metro. Wash. Airports Auth. v. Citizens for Abate-

ment of Aircraft Noise, 501 U.S. 252 (1991)............ 36

TABLE OF AUTHORITIES — Continued

Page

Mistretta v. United States, 488 U.S. 361

Eiri iniiccissaiicasiieiieneniandeannninneaiabiitiaatbsaptendeaienrnennes 4, 28, 33

Morrison v. Olson, 487 U.S. 654 (1988) ........................ 2

Natl Broad. Co. v. United States, 319 U.S. 190

Ee eee ee 8,9

Nat! Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

et nnencrtinchtnrsienientuemastasiaibeiiisentioeioanneine 27, 29

United States v. Baldwin, 745 F.3d 1027 (10th

SRR cinintipsiainteninetiitisentinnadiniteinimmmntin 14, 15, 16, 17

United States v. Evans, 333 U.S. 483 (1948)..... 16, 26, 35

United States v. Guzman, 591 F.3d 83 (2d Cir.

i hblainteciorstaitocrecisiensegtllaniattaheseteiaipininbiatitiulbadniebidesisenemmnened 4

United States v. Matchett, 837 F.3d 1118 (11th

SEINE coicuncsinhdnncichininstninttnsiapennaennpinimntdntinennitennnensens 15

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76

STi leciennichaeesiiinticindnimninetesapastaineaiasiinstainiandinadasiniiated 6, 16

Util. Air Regulatory Grp. v. EPA, 134 8. Ct. 2427

STII sateliitinshbeapaasheashtanthinehinseniisiniapiatenienpitnnpsbinisnmenne 34

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457

Sith cinseidesieasthnlensieinbanedanteibitnipenabatennidagmatapebinatédasenaseeseed 9

Wayman v. Southard, 23 US. (10 Wheat.) 1

SE ictennenctgutcineavanpematensenemvanessenenpnemeneianeent passim

Yakus v. United States, 321 U.S. 414 (1944) ................ 8

Yates v. United States, 135 S. Ct. 1074 (2015) ........... 21

vii

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

NII TE Tries cacecnnsdsncnnsbenentnuntavenneminiinie 11

kk | Eee 4, 6, 28

ON 29, 30

IEEE 1D scdenicaccsnnptentuninanscanenmmnecteionseeits 28

NS IIIT © nsrnsennsenntnpanensesnstectnsenvensncnsintiial 28

STATUTES

Crimes Act of 1790, ch. 9, 1 Stat. 112 .00.0.......cccccceee 16

EE ccecesitensencemnsamninisustenienerenmnenveimntianii 19

I icecriicusmnsrsenieirrenciiaticnciinnnnnnnnins 19

I ercncsinconsssesussptacnietecemvemnenivetepansvanieipeet 19

ITD iiccccdnsancteestuneiseoniounsunpeentepmanarenddepatnigiii 19

BN tisocichicniccsicambiervenisnivsincieenienesiniemmeetiainia 20

Be cevtescrensnnscnssvescicnnionmantsantanmimmnsnestinnsiiciiies 20

ee ED iiscintavrnscenvenenseedyetetseniesapnemannintannsnnensestiel 20

Be i sccnasiennnsgrnasesininncesnenuisessonnsimmennenevetmaiti 20

ee crectinnsacresssenionmnsnineannenesianiaat 20

| 20

I arcicsesenscespnsccserstemennscasennemnmiaenionnies 27

Ee 17, 18

ee i riiitneticineressatesrerneceernsnmmniuiies 18

GD TERA, © BIBI wovecccvccscccccsccscrccescccssvesccnessssssocess 18

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS

ee om 18

Sr UaEIITIIIITTTTIET Uinsintintneenseeensieemssmmenpuesaiapencsdenniunnidienh 18

Sy TTT sn iinrieanteccienhisaheaeilidtntibiambaenaiiinemennel 18

ITI iindineiiateniatatatuiaenouinsanenininiemstenscsnineiansits 20

OGLE. © SEF BID occscsccccccccescccosccccscseccccccessesceses 20

16 C.FR. § 1500. 18(a)(4).............ccccccececeesseeeeeeseeeensnees 19

16 C.F-R. § 1500. 18(a)(7)................:ccccceseeeceeeeeeeeeeeeeeees 19

16 C.F_R. § 1500. 190D (4D) «00... cccccccceeeeeeeeeeeeeeeeeneeee 19

BD Gale F BR EE BD cvccocccccccccsccccossccscsscesscsossosses 19

EB Gree OF eR cccccccecececcccsceseseecocsooccssccnescones 20

21 C.FR. § 136.1G0(a)(1)...0............cccccceeeseceeeeeeeeeeeeeees 20

BB Gee OP UID ccccsccccccnccssscosscerconssossonsenesscsesenses 20

no cncrcsentcenesnprnensnsinnenneteuseneetanell 20

BT oo cscscscsnsccninnnssbnsndnentornatniatetts 20

eee 20

SUT ITIIIIITIT TIT hicititenternientenetecnetinenseebpesictedsentistabneinddes 26

TT TELS AACA aT 18

SIT itinnconiiininsnitatnanidentiteiatibeingtiennimboataas 18, 19

TTT nssecencsecsntmescenmepcsmmameatnnemmnianesies 18

I: OEE cscverscoctecvenmenecescensrseninvensnseseneemuensie 19

TABLE OF AUTHORITIES — Continued

OTHER AUTHORITIES

A. J. Kritkos, Resuscitating the Non-Delegation

Doctrine: A Compromise and an Experiment,

ee 11

Amity Shlaes, The Forgotten Man (2007) ... 22, 23, 24, 25

Brookings Institution’s Vital Statistics, Con-

gressional Workload, 30th-114th Congresses,

1947-2016, i

Code of Federal Deiteniens Total Sieieoe and

Volumes 1938-2017, FederalRegister.gov, https-//

www.federalregister.gov/uploads/2018/03/cfrTotal

Clyde Wayne Crews Jr., Ten Thousand Com-

mandments: An Annual Snapshot of the Federal

Regulatory State, 2017 Edition, Competitive

pee ae oe — — a oomred

Federal patties Pages Published 1936-2017,

FederalRegister.gov, https://www.federalregister.

gov/uploads/2018/03/pagesPublished2017.pdf....... 13

Gary Fields and John R. Emshwiller, Many Ef-

forts to Count Nation’s Federal Criminal

Laws, Wall St. J., Jul. 23, 2011, https//www.wsj.

com/articles/SB 1000 14240527023043198045

TEU osnecenencnescccesecsesccnccsssescceseseconeees 14

Gary Lawson, The Rise and Rise of the Adminis-

trative State, 107 Harv. L. Rev. 1231 (1994)........... 30

TABLE OF AUTHORITIES — Continued

Gary Lawson, Delegation and Original Mean-

ing, 88 Va. L. Rev. 327 (2002) ..............ccccceceeseeeeeeeeee 30

Gillian E. Metzger, Appointments, Innovation,

and the Judicial-Political Divide, 64 Duke L.J.

Be Ce cesstssecsanscersnnssnnstnsinmnpinstepennnnmmneaisennsetsscce 29

Gillian Metzger, Foreword: 1930s Redux: The

Administrative State Under Siege, 131 Harv.

REE EN a 33

Ilan Wurman, Constitutional Administration,

Fins BE IEE OD cccscccoccecenscscmnecsssccensescoess 14

J. Locke, Second Treatise of Civil Government

he AE a a a a a 31

Jason luliano and Keith E. Whittington, The

Nondelegation Doctrine: Alive and Well, 93

Notre Dame L. Rev. 619 (2018).................0.:ccccc0000 10

John C. Coffee, Jr., Does “Unlawful” Mean

“Criminal”?: Reflections on the Disappearing

Tort/Crime Distinction in American Law, 71

Ss ne EE cstrnninsinscnesinniicciaitiiianittilinneennenveane 14

John S. Baker, Revisiting the Explosive Growth

of Federal Crimes, The Heritage Foundation

(2008), http:/Awww.heritage.org/research/reports/

Keith E. Whittington and Jason luliano The

Myth of the Nondelegation Doctrine, 165 U. Pa.

Bee i aidansidecinimeniisanteihepeseceiinnistiemiaeeneiun 6,7

TABLE OF AUTHORITIES — Continued

Page

Luke W. Goodrich and Rachel N. Busick, Sex,

Drugs, and Eagle Feathers: An Empirical

Study of Federal Religious Freedom Cases, 48

Seton Hall L. Rev. 353 (2018) ..................cccceeeeeeeeceeee 7

O.R. Pilat, Brooklyn Hens to Cackle in Duel With

Scream of the Blue Eagle, Brooklyn Daily Ea-

Oak Se pniricncnnernmsartnstineietitaictnapinteniniacesecees 23

Patrick McLaughlin and Oliver Sherhouse, Reg-

ulatory Accumulation since 1970, George Ma-

son University Mercatus Center, https://quant

gov.org/charts/regulatory-accumulation-since-

Sar ati hsinehiinaianiiedanindedusinentnanniinniiinanhbbimnimanteremasets 13

Philip Hamburger, Js Administrative Law Un-

I ccussinsccneistintevaiisnienicnenebonasetionseceness 31, 32

Pierce Butler, Letter to Weedon Butler, The Rec-

ords of the Federal Convention of 1787, Vol. 3,

Ed. Max Farrand, New Haven: Yale Univer-

HIE tamreenententeertennesenceneeienctmntnasinrercsens 36

Protecting and Promoting the Open Internet,

80 F-R. 19738 (Apr. 13, 2015) ..................cccececeeeeeeeeees 9

Randolph J. May, The Public Interest Standard:

Is It Too Indeterminate to Be Constitutional?,

53 Fed. Comm. L.cJ. 427 (2001)..............cccccceeeeeeeeeeeees i)

Sara Sun Beale, Federalizing Crime: Assessing

the Impact on the Federal Courts, 543 Annals

Am. Acad. Pol. & Soc. Sci. 39 (1996) ....................... 15

xii

TABLE OF AUTHORITIES — Continued

Page

Stephen G. Valdes, Frequency and Success: An

Empirical Study of Criminal Law Defenses,

Federal Constitutional Evidentiary Claims,

and Plea Negotiations, 153 U. Pa. L. Rev. 1709

Task Force on the Federalization of Criminal

Law, American Bar Association, The Federal-

ization of Criminal Law (1998).................00c0000 16

The Federalist No. 47 (James Madison) .................... 36

The Federalist No. 51 (James Madison) ................ 5, 36

The Federalist No. 73 (Alexander Hamilton) ............ 34

The Federalist No. 75 (Alexander Hamilton) ............ 31

Thomas Paine, Dissertation on First Principles

of Government, The Complete Writings of

Thomas Paine (Philip S. Foner ed., The Cita-

del Press 1945) (1795)...................cccccceeeesseceeeeeeeeeeeee 18

Webster's Dictionary (2nd ed. 1938) ....................00000- 8

@CrimeADay, Twitter, https://twitter.com/

CrimeADay/................. sepeicinineitientticintiitile 17, 18, 19, 20

INTEREST OF AMICUS CURIAE'

The Institute for Justice is the national law firm

for liberty, litigating in state and federal courts nation-

wide in defense of private property rights, educational

choice, economic liberty, and free speech. The Institute

advocates for adherence to the Constitution’s con-

straints on the size and scope of government powers,

which are crucial to the preservation of individual lib-

erty. Many of the Institute’s past or current clients are

subject to federal regulations promulgated under con-

gressional delegations. Some of these clients face or

have faced criminal penalties for alleged violations of

federal regulations. For these reasons, the Institute for

Justice has an interest in the enforcement of the Con-

stitution’s separation of powers.

SUMMARY OF THE ARGUMENT

In every high school civics class in America, stu-

dents learn that in our government’s system of checks-

and-balances, “the legislature makes [the law], the ex-

ecutive executes [the law], and the judiciary construes

the law.” Wayman v. Southard, 23 U.S. (10 Wheat.) 1,

46 (1825). It’s a simple description, but it matches the

basic tripartite structure in our Constitution and

would be familiar to the founding generation.

’ Pursuant to this Court’s Rule 37.3(a), all parties have con-

sented to the filing of this amicus brief. No portion of this brief

was authored by counsel for any party, and no person or entity

other than amicus and its counsel made a monetary contribution

to the preparation or submission of this brief.

Unfortunately, it bears no resemblance to the modern

Federal Government. Today, the Executive Branch rou-

tinely makes the law, enforces the law, and interprets

the law—and even adjudicates many of its own cases.

This case is not about if, when, or how convicted

sex offenders should register with law enforcement—

all very serious questions which Congress has good

reason to address. This case is about something more

fundamental: “[plower” and the “equilibrium the Con-

stitution sought to establish” with our tripartite sys-

tem of government. Morrison v. Olson, 487 U.S. 654,

699 (1988) (Scalia, J., dissenting). And this case pre-

sents the Court with an opportunity to restore the leg-

islative power to the correct branch.

In Section I, amicus argues that the nondelegation

doctrine derived from the Vesting Clauses is treated as

dead letter by federal courts, and the result is the con-

centration of lawmaking and law enforcement in the

Executive Branch. From 1940 to 2015, the period of the

modern ini: ligible principle test, a study reveals 0.06

percent of nondelegation challenges prevailed in fed-

eral courts. Compare that to the 12 percent of federal

nondelegation challenges that prevailed before the

Court adopted the modern intelligible principle test.

Or compare it to the 16 percent of state nondelegation

challenges that prevailed in the same period, 1940-

2015. The 12 and 16 percent success rates are compa-

rable to the success rates of constitutional claims

under the Free Speech Clause, Free Exercise Clause,

and Fourth Amendment exclusionary rule.

Now, the Executive Branch makes much more law

than the Legislative Branch, thanks to broad and un-

checked congressional delegations that outsource law-

making to the President and independent federal

agencies. In 2016, federal agencies promulgated al-

most 100,000 pages of federal rules in the Federal

roughly 6,000 pages of statutory law enacted during

the 114th Congress. Today, the Code of Federal Regu-

lations (C.F.R.) includes one million regulatory man-

dates or prohibitions, and imposes over one trillion

dollars in costs.

It is particularly troubling that Congress often

outsources to the Executive Branch the job of deciding

what conduct to criminalize (including delegations di-

rectly to the Nation’s prosecutors, as in this case).

There are 300,000 or more regulatory crimes scattered

throughout the C.F.R., 67 times as many crimes as the

about 4,500 federal statutory crimes. Some of these

regulatory crimes are seriously absurd, like the crimi-

nalization of misshaped meatloaf or mislabeled mar-

bles. Others address serious subjects, like the Sex

Offender Registration and Notification Act (““SORNA”)

regulation at issue here. But the serious problem is

that the Executive Branch, not the Legislative Branch,

is deciding what conduct to punish.

In Section II, amicus argues that even if the dele-

gation at issue here is the rare example of a delegation

impermissible even under the intelligible principle

test, as Petitioner persuasively argues, it is nonethe-

less time for the Court to sever ties with that test. The

modern intelligible principle test is utterly divorced

from the Constitution’s text, structure, and history.

This Court should adopt a more originalist nondelega-

tion test that would return lawmaking to where it be-

longs.

Because the Second Circuit’s decision in United

States v. Guzman, 591 F.3d 83 (2d Cir. 2010), on which

the lower Court’s decision relied, see Petitioner’s Brief

at 14, rests on a flawed application of the Vesting

Clauses, this Court should reverse.

ARGUMENT

The “nondelegation doctrine”—the principle that

Congress may not outsource its exclusively legislative

powers to any other Branch or to private parties—

comes from the Constitution’s opening declaration that

“lajll legislative Powers herein granted shall be vested

in a Congress of the United States.” U.S. Const. art. |,

§ 1. See also Mistretta v. United States, 488 U.S. 361,

371 (1989) (the nondelegation doctrine derives from

Article I's vesting of legislative power in Congress).

Congress’s Vesting Clause does not say “some,” or

“much,” or “most” legislative powers are vested in Con-

gress. It says “all” legislative powers are vested in Con-

gress—and Congress alone.

Yet we “have come to a strange place in our sepa-

ration-of-powers jurisprudence.” Dep't of Transp. v.

Ass’n of Am. R.R., 135 S.Ct. 1225, 1240 (2015)

(Thomas, J., concurring). Today, federal agencies, not

Congress, create most new federal law. The Executive

Branch routinely regulates—and even more troubling,

criminalizes—garden-variety private conduct. This

new order threatens the individual liberties our Con-

stitution is designed to protect. To help restore the

separation of powers, the Court should adopt an

originalist nondelegation test.

Il. Federal Courts Have Abandoned the Non-

delegation Doctrine, and Significant Law-

making Power is Now Concentrated in the

Executive Branch

The principle that “Congress cannot delegate the

legislative power” is “vital to the integrity and mainte-

nance of the system of government ordained by the

Constitution.” Marshall Field & Co. v. Clark, 143 U.S.

649, 692 (1892). But the modern intelligible principle

test has erased that vital principle from this Court's

jurisprudence.

Since 1935, no public nondelegation challenge has

prevailed at the Supreme Court under the modern “in-

gives Congress a green light to freely delegate away its

exclusive power to regulate private conduct. The result

is the “gradual concentration” of Congress’s exclusive

lawmaking power into the Executive Branch. James

Madison, Federalist No. 51. The President now makes

more law than Congress—by an order of several mag-

nitudes—and regulatory agencies have promulgated

hundreds of thousands of federal criminal offenses.

Even if any particular regulation could be de-

fended as a permissible delegation, in the aggregate,

the sheer scope of modern regulatory law would be in-

comprehensible to the founding generation. It is par-

ticularly troubling that the making of criminal law is

now concentrated in the Executive Branch. See United

States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820)

(“the power of punishment is vested in the legislative”

branch, “which is to define a crime, and ordain its pun-

ishment”). These regulations pose a serious threat to

individual liberty.

A. The Modern Intelligible Principle Test

Allows the Executive Branch to Make

Law and Decide Policy

In 1825, this Court recognized that the Vesting

Clauses prohibit Congress from delegating away enu-

merated “powers which are strictly and exclusively

legislative.” Wayman v. Southard, 23 U.S. (10 Wheat.)

1, 42 (1825). This “nondelegation principle” is rooted in

Article 1, § 1 of the U.S. Constitution, which vests Con-

gress with “lajll legislative Powers herein granted.”

Amicus discusses the original understanding of this

provision in greater detail infra at Section II.

For more than a century after the Court decided

Wayman, various federal courts held a number of del-

egations violated the Constitution’s separation of pow-

ers. Between 1880 and 1940—during the initial

expansion of the administrative state—12 percent of

federal nondelegation challenges prevailed. Keith E.

Whittington and Jason luliano The Myth of the Non-

delegation Doctrine, 165 U. Pa. L. Rev. 379, 426 (2017).

That figure suggests that federal courts took the non-

delegation doctrine seriously*—but also that, con-

sistent with Chief Justice John Marshall’s caution in

Wayman, federal courts do not appear to have “en-

terled] unnecessarily” into nondelegation disputes.

Wayman at 46. The success rate of nondelegation

claims in this period resembles the success rate of

other constitutional claims, such as religious liberty

claims under the Free Speech Clause (14 percent suc-

cess rate) or under the Free Exercise Clause (20 per-

cent success rate). See Luke W. Goodrich and Rachel N.

Busick, Sex, Drugs, and Eagle Feathers: An Empirical

Study of Federal Religious Freedom Cases, 48 Seton

Hall L. Rev. 353, 382 (2018). And it resembles the suc-

cess rate of Fourth Amendment exclusionary rule

claims (11.62 percent of suppression motions result in

acquittals). See Stephen G. Valdes, Frequency and Suc-

cess: An Empirical Study of Criminal Law Defenses,

Federal Constitutional Evidentiary Claims, and Plea

Negotiations, 153 U. Pa. L. Rev. 1709, 1728 (2005).

The most prominent example of a successful non-

delegation challenge is probably A. L. A. Schechter

Poultry Corp. v. United States, 295 U.S. 495 (1935),

* The study’s authors draw a different conclusion from the

raw numbers: that a 12 percent success rate shows the nondele-

gation doctrine was “already dead” before 1940, id. at 431. A 12

percent success rate does not support this conclusion, given the

comparable success rates in other constitutional claims discussed

above. But the 0.06 percent success rate under the modern intel-

ligible principle test is definitely “dead.”

discussed in greater detail infra at Section I(D)(3). But

then, in a series of cases in the 1940s, the Court

adopted a new nondelegation test, even though it os-

tensibly invoked the “intelligible principle” test from

an earlier case, J.W. Hampton, Jr, & Co. v. United

States, 276 U.S. 394 (1928). Under the new version of

the test, Congress may delegate its lawmaking powers

to an agency so long as Congress suggests an “intelli-

gible principle” to guide the agency’s lawmaking—with

the added wrinkle that a statute is sufficiently “intel-

ligible” if Congress sets the “general policy” direction

for the agency to pursue. Am. Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946) (finding no impermissible dele-

gation where Congress authorized the SEC to prohibit

reorganizations that “unfairly or inequitably” distrib-

ute voting power).

Applying the modern intelligible principle test,

this Court has held, for example, that Congress can

delegate to an agency the power to fix prices at a level

that the agency finds “fair and equitable,” Yakus v.

United States, 321 U.S. 414, 427 (1944); to decide what

utility charges are “just and reasonable,” FPC v. Hope

Nat. Gas Co., 320 U.S. 591, 600 (1944); or regulate pub-

lic broadcasting in a manner that is “in the public in-

terest.” National Broadcasting Co. v. United States,

319 U.S. 190, 224-225 (1943).

“Fair,” “just,” and “public interest” are all “intelli-

gible” terms—in the sense that those words, to some

degree, are “capable of being understood.” Webster's

Dictionary (Second Edition) (1938). But they’re also ca-

pable of being misunderstood, or even manipulated.

And they grant broad policymaking authority that is

“too great .. . to be called anything other than legisla-

tive.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,

487 (2001) (Thomas, J., concurring) (cleaned up) (argu-

ing that a principle can be both “intelligible” and yet

still legislative).

The National Broadcasting Co. case shows just

how legislative in character “public interest” rule-

makings can be. As of at least 2001, Congress had au-

thorized the FCC to act in the “public interest” in close

to a hundred statutory provisions—so many times that

the FCC now couches much if not most of its regula-

tions and enforcement in the public interest rubric. See

Randolph J. May, The Public Interest Standard: Is It

Too Indeterminate to Be Constitutional?, 53 Fed.

Comm. L.J. 427, 429 (2001). The FCC has invoked the

standard to encourage some political programming, to

discourage programming involving drugs or sex, to

transform the ownership structure of TV, cable, news-

paper, and wireless companies, and to interfere with

mergers—to name a few. Id. at 429-430. And in 2015,

the FCC invoked the “public interest” to justify much

of its controversial Open Internet Order, which reclas-

sified the Internet under Title II of the Act as a com-

munications service subject to significantly greater

government oversight. See Protecting and Promoting

the Open Internet, 80 F.R. 19738 (Apr. 13, 2015) (refer-

encing the “public interest” over 100 times in final

rule).

B. Although Federal Courts now Treat the

Nondelegation Doctrine as a Dead Let-

ter, Data Show Federal Courts Rou-

tinely Enforced Nondelegation For a

Century, and State Courts Still Do

The modern intelligible principle test did not

weaken the nondelegation doctrine—it erased it. Be-

tween 1940 and 2015 the effective success rate for all

federal nondelegation challenges in the federal appel-

late courts and U.S. Supreme Court had fallen to a re-

markable 0.06 percent. Jason luliano and Keith E.

Whittington, The Nondelegation Doctrine: Alive and

Well, 93 Notre Dame L. Rev. 619, 636 (2018) (only five

of 156 nondelegation challenges prevailed in federal

appellate courts; of those five decisions, four were re-

versed). And this Court has not held that a statute im-

permissibly delegated legislative power to the

Executive Branch since 1935, when the Court decided

Schechter Poultry, discussed infra at Section I(D)(3).

The experience of state courts applying their own

nondelegation doctrines during the same period pro-

vides a stark contrast. From 1940 through 2015, non-

delegation challenges prevailed in 151 out of 919 state

court cases—an invalidation rate of 16 percent. Iuliano

and Whittington at 636. That percentage is roughly

comparable to the average success rate of 20 percent

for all constitutional challenges in state courts. Jd. at

637.

Florida is illustrative. Like the federal Constitu-

tion, the Florida Constitution establishes a similar

tripartite system, with each branch’s powers limited to

those enumerated “herein.” Fla. Const., art. II, § 3 (“No

person belonging to one branch shall exercise any pow-

ers appertaining to either of the other branches unless

expressly provided herein”). But unlike the federal

Constitution, state courts continue to enforce the Flor-

ida Constitution’s separation of powers. See A. J.

Kritkos, Resuscitating the Non-Delegation Doctrine: A

Compromise and an Experiment, 82 Mo. L. Rev. 441

(2017) (describing the Florida experience enforcing the

nondelegation doctrine).

For example, in Askew v. Cross Key Waterways, 372

So.2d 913 (Fla. 1978), the court held that an environ-

mental statute authorizing a state agency to designate

“areas of critical state concern” was impermissible be-

cause it ceded to an agency the core legislative power

to determine what “concerns” are “critical” to the state.

Id. at 925. The Florida Supreme Court expressly re-

jected the federal intelligible principle test, which the

court described as “abandon|ing] the doctrine of non-

delegation.” Jd. at 924. The court also rejected the ar-

gument that the “complexities of modern society”

require the legislature to repose in an agency “the

power to establish fundamental policy.” Jd. Instead,

the court ruled that if legislation is “so lacking in

guidelines” that it empowers the agency to become “the

lawgiver rather than the administrator,” it is unconsti-

tutional. Jd. at 918-919.

The experience of Florida and other states sug-

gests that greater enforcement of constitutional non-

delegation is judicially administrable. Whatever the

“correct” success rate for federal nondelegation chal-

lenges might be, it should be greater than zero. That

the success rate under the current test is effectively

zero suggests that the current test is incompatible

with what the Constitution demands.

C. Lawmaking by Regulatory Bodies Now

Outpaces Lawmaking by Congress, and

Over One Million ‘Regulatory Re-

strictions’ Impose Over a Trillion Dol-

lars in Annual Costs

Relying on broad delegations of authority, the

President now routinely sets policy and makes law on

important subjects and routinely regulates private

conduct. Indeed, the President now makes more law

than Congress. During the 114th Congress (2015-

2016), Congress enacted 6,170 pages of law. See Brook-

ings Institution’s Vital Statistics, Congressional Work-

load, 30th-114th Congresses, 1947-2016, Table 6-4, https://

www.brookings.edu/wp-content/uploads/2017/0 l/vital-

stats_ch6_ full.pdf. In stark contrast, in 2016, federal

agencies promulgated 97,069 pages of federal rules in

the condensed, tri-column format of the Federal Regis-

ter. Id. at Table 6-5.

That gulf between the amount of lawmaking done

by Congress and the amount of lawmaking done by fed-

eral agencies has not always been so immense. The

81st Congress (1949-1950) enacted 2,314 pages of pub-

lic laws, see Brookings Institution’s Vital Statistics at

Table 6-4, and the same year, federal agencies

promulgated 9,562 pages of regulations, see Federal

gov, https://www.federalregister. gov/uploads/2018/03/

pagesPublished2017.pdf.

The total size of the C.F.R. has grown at an im-

mense rate. Between 1950 and 2016, the total pages of

federal regulatory law grew by 1,890 percent. See Code

of Federal Regulations Total Pages and Volumes 1938-

2017, FederalRegister.gov, https://www.federalregister.

gov/uploads/2018/03/cfrTotalPages2017.pdf (showing

9,745 pages in the C.F.R. in 1950 and 185,053 pages in

the C.F.R. in 2016).

Nor are these pages of regulations merely horta-

tory. One quantitative study shows that the number of

“regulatory restrictions”—the researchers’ term to de-

scribe phrases like “shall” or “must” or other words

that require or prohibit activity—in the C.F.R. has

steadily increased by about 13,000 restrictions per

year. By the end of 2016, the C.F.R. included at least

1,080,000 total regulatory restrictions. See Patrick

McLaughlin and Oliver Sherhouse, Regulatory Accu-

mulation since 1970, George Mason University

Mercatus Center, https://quantgov.org/charts/regula-

tory-accumulation-since-1970/. These “regulatory re-

strictions” impose an estimated $1.96 trillion (that’s

with a ¢t) in costs on the U.S. economy each year. See

Clyde Wayne Crews Jr., Ten Thousand Command-

ments: An Annual Snapshot of the Federal Regulatory

State, 2017 Edition, Competitive Enterprise Institute,

2-3 (2017), https://cei.org/sites/default/files/Ten%20

Thousand%20Commandments%202017.pdf.

And often, federal agencies regulate on important,

controversial topics precisely because Congress has

not adopted the policies the agencies prefer, such as the

EPA’s Clean Power Plan or the FCC’s Open Internet

Order. See Ilan Wurman, Constitutional Administra-

tion, 69 Stan. L. Rev. 359, 371 fn. 53 (2017) (describing

some of the “recent controversial” rulemakings as “in-

volveling] important political issues” Congress de-

bated but had not acted on).

D. Congressional Delegations Have Re-

sulted in Over 300,000 Regulatory

Crimes, Criminalizing Everything from

Mislabeled Marbles to Misshaped Meat-

loaf

Regulatory criminalization provides a good exam-

ple of how widespread legislative delegation endangers

individual liberty. There are so many federal crimes to-

day that “scholars actually debate their numbers.”

United States v. Baldwin, 745 F.3d 1027, 1031 (10th

Cir. 2014) (citing John C. Coffee, Jr., Does “Unlawful”

Mean “Criminal”?: Reflections on the Disappearing

Tort/Crime Distinction in American Law, 71 B.U. L.

Rev. 193, 216 (1991)). After the Department of Justice

assigned Ronald Gainer to count all federal criminal

laws in 1982, he had to give up because “[y]ou will have

died and resurrected three times” before counting

them all. Gary Fields and John R. Emshwiller, Many

Efforts to Count Nation’s Federal Criminal Laws, Wall

Street Journal, Jul. 23, 2011, https:/Awww.wsj.com/

articles/SB1000 14240527023043 1980457638960 107

9728920. The best estimates suggest that with at least

300,000 regulatory crimes in the C.F.R, there are 67

times as many federal regulatory crimes as the 4,450

statutory crimes in the U.S. Code. Baldwin, 745 F.3d at

1031 (citing estimate of 300,000 regulatory crimes)

and John S. Baker, Revisiting the Explosive Growth of

Federal Crimes, The Heritage Foundation (2008), http://

www.heritage.org/research/reports/2008/06/revisiting-

the-explosive-growth-of-federal-crimes (estimating 4,450

federal statutory crimes).

. The abundance of federal criminal

law is a recent phenomenon.

“Before the Civil War, Congress enacted very few

criminal laws and crime control was left largely to the

states.” United States v. Matchett, 837 F.3d 1118, 1119

(11th Cir. 2016) (cleaned up). The few federal crimes

addressed “injury to or interference with the federal

government itself or its programs” or crimes against

individuals that occurred on federal lands or waters.

Sara Sun Beale, Federalizing Crime: Assessing the Im-

pact on the Federal Courts, 543 Annals Am. Acad. Pol.

& Soc. Sci. 39, 40 (1996).

For example, the first federal criminal code—

adopted by the Congress in 1790—only covered seven

categories of offenses against the United States itself

or offenses on federal lands, waters, or the high sea:

treason (including misprision of treason), piracy,

murder and mayhem, larceny, offenses against the

judicial tribunal (such as perjury, bribery of judges,

obstruction, theft of executed bodies, and prison

breaks), offenses against diplomats, and counterfeit-

ing. See Crimes Act of 1790, ch. 9, 1 Stat. 112.

Since the New Deal—and in particular, since the

1970s—the number of federal criminal statutory laws

has increased significantly. But whatever broader con-

cerns may exist about the federalization of criminal

law, see, e.g., Task Force on the Federalization of Crim-

inal Law, American Bar Association, The Federaliza-

tion of Criminal Law (1998), federal statutory crimes

are, at least, enacted by the body the Constitution en-

trusted with the legislative power. Wiltberger, 18 U.S.

(5 Wheat.) at 95 (describing criminalization as the

province of the Legislative Branch). See also United

States v. Evans, 333 U.S. 483, 486 (1948). But statutory

crimes adopted by Congress constitute only a tiny frac-

tion of all federal criminal offenses today.

2. Examples from the 300,000 regula-

tory crimes show agencies criminal-

ize harmless, garden-variety private

conduct

Today, Congress “freely delegate|s| the core legis-

lative business of writing criminal offenses to unelected”

bureaucrats. Baldwin, 745 F.3d at 1030. As a result,

the Code of Federal Regulations (C.F.R.) is now

“crowded” with regulatory crimes because of “generous

congressional delegations” of authority. Jd. at 1031.

One estimate from 1990 pegged the number of regula-

tory crimes at 300,000. Jd. Thirty years later, the

number is likely much greater. Compare the 300,000

regulatory crimes with the roughly 4,450 statutory

crimes in the U.S. code. John S. Baker, Revisiting the

Explosive Growth of Federal Crimes, The Heritage

Foundation (2008), http://www.heritage.org/research/

reports/2008/06/revisiting-the-explosive-growth-of-federal-

crimes.

It’s not always obvious what regulatory violations

carry criminal penalties. Indeed, “[nlormally we don’t

think of regulatory agencies as entitled to announce

new crimes by fiat,” so understanding whether regula-

tory noncompliance triggers criminal penalties re-

quires “some scratching around.” Baldwin, 745 F.3d at

1030. Often, it’s necessary to read through several stat-

utory provisions and several regulations.

The popular @CrimeADay Twitter account, which

has reported one federal crime a day for nearly four

years, provides a revealing glimpse into the broad and

bewildering world of regulatory crimes. See @Cri-

meADay, Twitter (Jul. 17, 2015), https://twitter.com/

CrimeADay/status/622073623013146624 (estimating

it will take 800 years to tweet one federal crime per

da. ).

Take 40 U.S.C. § 1315, which authorizes “une-

lected property managers” to write regulations to pro-

tect and administer federal property. Baldwin, 745

F.3d at 1030-1031 (expressing reservations about reg-

ulatory criminalization while upholding conviction for

refusal to give officer license and registration). The ob-

jective of the statute’s delegation, protecting federal

property, is reasonable enough. But what measures are

reasonable for the protection of federal property is

tougher to answer. The danger with such a broad dele-

gation is, as the Framers well understood, that the

“avidity to punish . . . leads men to stretch, to misinter-

pret, and to misapply even the best of laws.” Thomas

Paine, Dissertation on First Principles of Government,

The Complete Writings of Thomas Paine 588 (Philip S.

Foner ed., The Citadel Press 1945) (1795).

How reasonable are these protections of federal

property? Federal regulations issued under 40 U.S.C.

§ 1315 make it a crime to fall asleep at the U.S. Meat

Anima! Research Center in Clayton, Nebraska, see 40

U.S.C. § 1315(c), 7 C.F_R. § 501.5, and 7 C.F_R. § 500.15°

or to collect on a private debt while in the National Ar-

boretum see 40 U.S.C. § 1315(c), 7 C.F.R. § 500.8(a)(3),

and 7 C.F-R. § 500.15.* And when at the National Insti-

tutes of }"ealth, don’t ride a bicycle without a horn, see

40 U.S.C. § 1915, 45 C.F.R. § 3.27, and 45 C_F_R § 3.3.°

And don’t engage in any hobbies outside designated ar-

eas, see 40 U.S.C. § 1315(c), 45 C.F.R. § 3.42(a), and 45

C.E-R § 3.3,° or go rollerskating, 40 U.S.C. § 1315(c)(2),

* @CrimeADay, Twitter (Jun. 10, 2015), https://twitter.com/

eee

* @CrimeADay, Twitter (Aug. 8, 2017), https://twitter.com/

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pees s-o9, kp —epmrigeyangiongaN

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CrimeADay/status/6 1062659399682867 2.

45 C.F.R. §3.42(e), and 45 C.F.R § 3.3.’ Those are

crimes, too.

One need not visit federal property to risk an

amusement-related criminal offense. According to the

Consumer Product Safety Commission (“CPSC”), it’s a

criminal offense to sell classic toys like lawn darts, see

15 US.C. §§ 1261, 1262, 1263, 1264 and 16 C.F.R.

§ 1500.18(a)(4),* and toy clackers see 15 U.S.C. §§ 1261,

1262, 1263, 1264 and 16 C.F.R. § 1500.18(a)(7).° And

CPSC says it’s a crime to sell a toy marble without an

explicit warning that the toy marble is a toy marble,

see 15 U.S.C. §§ 1261, 1262, 1263, 1264 and 16 C.F.R.

§ 1500.19(b)(4)(i)."° And that warning better include an

exclamation mark inside an “equilateral” triangle—no

isosceles or right triangles allowed—or that’s a crime,

too, 15 U.S.C. § 1264 and 16 C.F-R. § 1500.19(d)(11)."

Federal regulators care a lot about shapes when it

comes to the dizzying array of food crimes, too. Under

regulations by the Food and Drug Administration

(“FDA”), the unwary pasta seller might face federal

criminal sanctions for selling “egg noodles” if they’re

* @CrimeADay, Twitter (Jul. 23, 2015), https//twitter.com/

ay sar map

* @CrimeADay, Twitter (Aug. 8, 2014), https://twitter.com/

apap as = enter pea eager

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CrimeA Day/status/743246979203989504.

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CrimeADay/status/702289 127325229056.

“' @CrimeADay, Twitter (Aug. 14, 2016), https://twitter.com/

CrimeA Day/status/7649865904 22769665.

not ribbon-shaped, see 21 U.S.C. §§ 331, 333, 341,

343(g) and 21 C.F.R. § 139.150(b).” Ditto selling soy

spaghetti if it’s not tube- or cord-shaped, see 21 U.S.C.

§§ 333, 341 and 21 C.FR. §§ 139.140 & 139.110(c).”

The FDA is also concerned about the shape of meat-

loaf—if it’s labeled “Old Fashioned,” it better be rectan-

gular with a rounded top, or circular with a flat bottom,

or that could be a federal crime, too. See 21 U.S.C. § 676

and 9 C.F-R. § 301.2, 9 C_F_R. § 317.8(b)(9\(iii). And woe

unto the baker who sells his raisin buns with an inad-

equate raisin-to-flour ratio, see 21 U.S.C. §§ 331, 333,

341, 343(g) & 21 C.FR. § 136.160(a)(1)," or the fro-

mager who unevenly distributes spices throughout her

spiced cheeses, see 21 U.S.C. §§ 333, 343 and 21 C.F-R.

§ 133.190(aX(3)."*

One might be inclined to call these regulatory food

crimes “pure applesauce,” King v. Burwell, 135 S. Ct.

2480, 2501 (2015) (Scalia, J., dissenting)—but be care-

ful: canned applesauce with the apple core left in is a

federal crime, too. See 21 U.S.C. §§ 331, 333, 343 and

21 CFR. § 145.110(a)(1)."*

™ @CrimeADay, Twitter (Feb. 10, 2018), https://twitter.com/

CrimeA Day/status/9625 174074567 84384.

“ @CrimeADay, Twitter (Oct. 14, 2017), https://twitter.com/

rape sane men eS

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*® @CrimeADay, Twitter (Jul. 28, 2017), https://twitter.com/

Reece “Ry A NESE

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CrimeADay/status/88 1693280207077376.

One would hope that no prosecutor would have the

poor judgment to bring charges under any of these reg-

ulations. But then, poorly-conceived criminal laws

“give prosecutors too much leverage,” see Yates v. United

States, 135 S. Ct. 1074, 1100-1101 (2015) (Kagan, J.,

dissenting), and that leverage is tempting. One would

not be surprised to see a prosecutor zealously pursue a

conviction under an ill-fitting criminal statute. See, e.g.

Yates at 1079-1080 (Ginsburg, J., announcing judg-

ment of the Court) (describing the federal prosecution

of a fisherman who faced 60 years in prison for tossing

three under-sized fish back into the ocean).

3. The targeted prosecution of the

Shechter Brothers shows the threat

that regulatory criminalization poses

to liberty

Schechter Poultry, the case most closely associated

with the nondelegation doctrine, also involved a fed-

eral food regulation with criminal penalties. Unfairly

nicknamed the “Sick Chickens Case,” the Schechter

Poultry opinion has been invoked by critics of judicial

enforcement of the nondelegation doctrine as a cau-

tionary tale. Schechter Poultry merits rehabilitating:

the broader history and context of the case show the

danger of delegating lawmaking to law enforcement,

and the importance of meaningful judicial enforcement

of the separation of powers.

Schechter Poultry involved a challenge to § 3 of the

National Industrial Recovery Act (“NIRA”), which

authorized the President to create “codes of fair

competition” for trades or industries, selected by the

President, so long as the President determines the reg-

ulations are “in furtherance of the public interest.”

Schechter Poultry, 295 U.S. at 840.

The Act marked a rapid rise in federal regulatory

lawmaking. In a single year, the federal government

produced around 10,000 pages of new law, mostly reg-

ulatory, compared to the 2,735 pages of federal law cre-

ated during the preceding 145 years, combined. See

Amity Shlaes, The Forgotten Man 201-202 (2007) (“In

twelve months, the NRA had generated more paper

than the entire legislative output of the federal govern-

ment since 1789”).

The “Live Poultry Code,” promulgated under NIRA,

was among that wave of new regulations. The Live

Poultry Code covered individuals involved in selling,

purchasing for resale, transporting, handling, or slaugh-

tering poultry. Schechter Poultry, 295 U.S. at 840. The

Code regulated an array of business practices, includ-

ing the maximum number of hours worked per day, the

minimum pay for employees, poultry inspection re-

quirements, record-keeping requirements, price con-

trols, and prohibiting “unfair methods of competition,”

such as a ban on “straight killing,” a curious term that

means letting customers choose which chickens they

want to purchase. Id. at 841-842. The Code required a

customer blindly to put his hand into a chicken coop

“and take the first chicken that comes to hand,” “irre-

spective of the quality of the chicken.” Shlaes at 241

(quoting from the Schechter Poultry oral argument).

Donald Richberg, the co-author of the Act and the

director of the new National Recovery Administration,

warned the Justice Department that the Act could face

constitutional challenges, and so the Roosevelt Admin-

istration actively sought a “test case” to try to prove

the Act’s constitutionality. Shlaes at 203. Federal pros-

ecutors eventually settled on the poultry industry to

bring a test case, hoping that negative public senti-

ments about live chicken butchering would highlight

the health benefits of the New Deal. Id.

At the time, minority groups dominated the pur-

chase of live-butchered chickens in New York City: 80

percent of these chickens were sold to Jewish families,

the rest to African Americans, Chinese, and Italian res-

idents. See O.R. Pilat, Brooklyn Hens to Cackle in Duel

With Scream of the Blue Eagle, Brooklyn Daily Eagle,

May 1, 1935 at 3.

The Schechter family immigrated to the U.S. from

Eastern Europe. The Schechter brothers—Aaron, Alex-

ander, Joseph, and Martin—opened a kosher slaugh-

terhouse in Brooklyn. Shlaes at 215. They purchased

live chickens, butchered them according to Jewish ko-

sher law, and sold the kosher chickens to retailers. Id.

at 215-216. Each day, the Schechters butchered about

600 chickens, officiated by Rabbi Hellal Girschon. See

Pilat, Brooklyn Hens to Cackie in Duel With Scream of

the Blue Eagle, Brooklyn Daily Eagle, May 1, 1935 at

In July 1935, the Schechter brothers were indicted

on 60 counts of violating the Live Poultry Code, Shlaes

at 204. Of those, the court convicted the Schechters on

18 counts, two of whici: were reversed on appeal to the

Second Circuit, leaving 16 counts for consideration by

the Supreme Court. Schechter Poultry, 295 U.S. at 519-

520. The convictions include (1) one count of conspiracy

to violate the Live Poultry Code, (2) ten counts of

“straight killing,” (3) two counts of failing to follow

New York City chicken-inspection regulations, (4) two

counts of failing to report correctly the “range of daily

prices and volume of sales,” (5) one count of selling to

an unlicensed chicken dealer, and (6) one count of sell-

ing an “unfit” chicken. Jd. at 525-528.

The number of indictments and convictions may

sound impressive but recall that the Schechters butch-

ered around 600 chickens per day or 3,600 chickens per

week. NRA officials investigated the Schechters for

some period during the summer of 1934. The Schecht-

ers described the investigation as intrusive and exten-

sive, not to mention extremely disruptive to the

brothers’ business. See Shlaes at 214-243 (recounting

history of the investigation, prosecution, trial, and ap-

peals). If the NRA Code Authority only investigated

the Shechters for a week, then out of the 3,600 butch-

ered chickens, federal investigators identified a mere

ten times (or 0.028 percent of chickens in a week) in

which the Schechters had unlawfully allowed their

customers to choose for themselves which chicken to

purchase.

As for the ominous-sounding criminal conviction

for the sale of an “unfit” chicken, out of perhaps 3,600

butchered chickens in a week, the Code investigators

identified only ten (or 0.028 percent) they thought

might be “unfit,” or unhealthy. Jd. at 223-224. Further

investigation narrowed the number to three suspect

chickens (0.0083 percent), and autopsies revealed only

one “unfit” chicken, or 0.0028 percent of the chickens

butchered in a week. Jd. And that chicken was found

“unfit” only because it was an “eggbound chicken,” or a

chicken with eggs lodged inside—a fact that would

have been hard for the Schechters to have known. /d.

Calling Shechter Poultry the “Sick Chickens Case”

is misleading: despite an extensive investigation, the

agency never found a single instance where the

Shechters sold a sick chicken. But this myth about the

case fit with the narrative the Richberg and the DOJ

hoped to cultivate in their “test case”: that its regula-

tions were necessary to protect public health. Shlaes at

203.

The Live Poultry Code regulations and the prose-

cution of the Schechters highlight the danger of Con-

gress delegating away its lawmaking powers—and

why the Court should enforce the nondelegation doc-

trine. The Live Poultry Code’s extensive regulations

criminalized a wide-range of private, garden-variety

conduct. Not only did the Schechters face imprison-

ment and other quasi-criminal penalties, the regu-

lations exposed the Schechturs to an _ invasive,

wide-ranging prosecution that nearly destroyed their

family business. Jd. at 221-223. Whatever else might

be considered an “important” lawmaking subject, see

Wayman, 23 U.S. (10 Wheat.) at 43, the choice whether

to bring the federal government’s weighty criminal

prosecution power to bear on private conduct is cer-

tainly “important.”

The Live Poultry Code and the criminal offenses

highlighted by @CrimeADay might strike different

people as serious or seriously absurd. But that is be-

side the point. The C.F.R. is “crowded” with absurd

criminal offenses, as well as criminal offenses that

could be justified on sound legal and policy grounds—

including the Department of Justice regulation at is-

sue here, 28 C.F.R. § 72.3. But these regulations reflect

policymaking and lawmaking by the Executive

Branch, not Congress, even though “defining crimes

and fixing penalties” is an exclusively legislative func-

tion. Evans, 333 U.S. at 486.

Il. The Court Should Adopt an Originalist

Nondelegation Test Rooted in the Text,

Structure, and History of the Constitu-

tion’s Vesting Clauses

An originalist nondelegation test would look very

different from the modern intelligible principle test. A

test that comports with the text, structure, and history

of the Vesting Clauses would recognize that,

(1) the Constitution does not expressly authorize

Congress to delegate its exclusively legislative powers

to the President;

(2) the Constitution does not implicitly authorize

Congress to delegate its exclusively legislative powers

to the President;

(3) even if Congress can assign some discretion

to the President to carry out properly-promulgated leg-

islation, Congress cannot delegate the exclusively

legislative task of regulating private conduct or mak-

ing law on “important subjects,” including criminaliza-

tion and other major policy questions; and

(4) because the separation of powers exists to

protect liberty, the tie should go to liberty in close

cases.

The Court should replace the intelligible principle

test with a test rooted in these principles."’

A. The Constitution Does Not Expressly or

Implicitly Authorize Congress to Dele-

gate Away the Exclusively Legislative

Power to Regulate Private Conduct

“The Federal Government ‘is acknowledged by all

to be one of enumerated powers.’” Nat'l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 534 (2012) (quoting

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405

(1819)). The text, history, and structure of the U.S. Con-

stitution confirm what this Court recognized long ago:

Congress cannot delegate away enumerated “powers

which are strictly and exclusively legislative.” Wayman,

23 U.S. (10 Wheat.) at 43. The first section of each of

"’ Petitioner persuasively argues that 34 U.S.C. § 20913(d) is

the rare example of a delegation that would fail even the modern

intelligible principle test. Indeed, 34 U.S.C. § 20913(d) is remark-

ably rudderless because it lacks even the vague “general policy”

direction required by Am. Power & Light Co.

articles I, II, and III vests a separate branch with spe-

cific, particular powers: art. I, § 1 vests Congress with

“[alll legislative Powers”; art. II, § 1 vests the President

with the “executive Power’—the power to carry the

law into effect; and art. III, § 1 vests the “judicial

Power”—the power to interpret the law and render

judgments—in the Supreme Court and any inferior

courts established by Congress.

1. The Constitution does not expressly

authorize Congress to delegate its

exclusively legislative powers

Art. I, § 1 includes two internal textual limitations

on Congress’s legislative powers: first, the legislative

power is limited to enumerated powers “herein

granted” in Article I. See Martin v. Hunter’s Lessee, 1

Wheat. 304, 326 (1816) (“The Government ... can

claim no powers which are not granted to it by the Con-

stitution, and the powers actually granted, must be

such as are expressly given, or given by necessary im-

plication”). And second, the Constitution vests “all” leg-

islative powers in Congress, rather than in the other

branches. The “nondelegation doctrine” stems from the

combined effect of U.S. Const. art. I, § 1’s two textual

limitations on Congress’s power. See Mistretta at 371

(explaining the nondelegation doctrine “derives from

the Constitution’s opening declaration”). The Constitu-

tion does not dole out legislative power all over the

place— it lists specific powers in one section.

The powers enumerated in art. I, § 8 are varied

but specific. For example, Congress has the power to

tax and spend, cl. 1; the power to regulate commerce

among the states and with foreign nations and Indian

tribes, cl. 3; the power to establish post offices and

roads, cl. 7; the power to create inferior courts, cl. 9; and

the power to raise and support armies, cl. 12.

But the power to delegate legislative authority

isn’t among the detailed powers in art. I, § 8. The lack

of this authority is significant, because “|t)}he Consti-

tution’s express conferral of some powers makes clear

that it does not grant others. And the Federal Govern-

ment can exercise only the powers granted to it.” Natl

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 534-535

(2012) (cleaned up).

Without express authority to delegate, defenders

of broad delegations look to the Necessary and Proper

Clause, art. I, § 8, cl. 18, to “approvie] the modern ad-

ministrative state.” INS v. Chadha, 462 U.S. 919, 982-

984 (1983). See, e.g., Gillian E. Metzger, Appointments,

Innovation, and the Judicial-Political Divide, 64 Duke

L.J. 1607, 1639 (2015) (arguing the Necessary and

Proper Clause gives Congress the “ability to design in-

novative governmental structures or regulatory

measures”).

But the Necessary and Proper Clause is not a free-

standing grant of power. It vests Congress only with

the authority to “make all Laws which shall be neces-

sary and proper for carrying into Execution the forego-

ing powers” mentioned in art. I, § 8, and “all other

Powers vested by this Constitution” in any other

branch or to any officer. In other words, the Necessary

and Proper Clause does not itself grant Congress any

additional enumerated powers— it only enables Con-

gress to pass laws to carry into execution other enu-

merated powers—either its own enumerated powers,

or the enumerated powers of other branches or officers.

See, e.g., Wayman 23 U.S. (10 Wheat.) at 22 (describing

the Process Act of 1792 as enabling the Judicial Branch

to “carry into Execution” the Judiciary’s own vested

power to render judgment, rather than delegating to

the Judiciary Congress’s exclusively legislative power).

See also Gary Lawson, The Rise and Rise of the Admin-

istrative State, 107 Harv. L. Rev. 1231, 1234-1235 (1994).

Whatever authority the Necessary and Proper

Clause provides Congress, it is not the authority to del-

egate away any legislative powers that are exclusive to

Congress, see Wayman at 43, like regulation of inter-

state commerce, art. I, § 8, cl. 3—the clause perhaps

most often invoked by Congress in its modern, sweep-

ing delegations to the President.

2. The Constitution does not implicitly

authorize Congress to delegate its

exclusively legislative powers

Nor would the founding generation have under-

stood the Constitution as granting Congress an im-

plicit authority to delegate away legislative power,

either. See generally Gary Lawson, Delegation and

Original Meaning, 88 Va. L. Rev. 327 (2002) (arguing

that a power, once delegated, cannot be delegated

away). See also Philip Hamburger, Is Administrative

Law Unlawful? 377-402 (2014) (tracing the centuries-

old principle that pov ~delegated from the people can-

not be subdelegated).

This principle—that a power delegated from the

people to a department of government may not then be

subdelegated to another department—predates the

Constitution. For example, John Locke argued that

“(t]he legislative cannot transfer the power of making

laws to any other hands. For it being but a delegated

power from the people, they, who have it cannot pass it

to others.” J. Locke, Second Treatise of Civil Govern-

ment § 22, 71. Because the founding generation is un-

likely to have understood the Constitution impliedly

authorizes the delegation of exclusively legislative

powers, this Court should not read an implied author-

ity into the Constitution.

B. Congress May Not Delegate to the Ex-

ecutive the Authority to Establish Gen-

erally Applicable Rules Governing

Private Conduct

“(Tlhe formulation of generally applicable rules of

private conduct” is among the most well-established

and historically-identifiable core legislative powers.

Ass’n of Am. R.R., 135 S. Ct. at 1242 (Thomas, J., con-

curring). See also Bond v. United States, 134 S. Ct.

2077, 2106 (2014) (quoting Alexander Hamilton, in

Federalist No. 75, that the legislative power is the

power “to prescribe rules for the regulation of the soci-

ety”). The principle that the core legislative power is

the authority to establish general rules for private con-

duct also predates the founding. See Ass’n of Am. R.R.,

135 S. Ct. at 1242-1244 (Thomas, J., concurring). See

also Philip Hamburger, Is Administretive Law Unlaw-

ful? 84 (2014) (“the natural dividing line between leg-

islative and nonlegislative power was between rules

that bound subjects and those that did not”).

Early legislation provides evidence of the general

acceptance of this principle. For example, an 1813 stat-

ute authorized the Treasury to establish regulations

that “shall be binding on each [federal] assessor in the

performance of” his duties. The statute did not purport

to delegate to the President the authority to establish

regulations to bind the private conduct of the general

public. See Philip Hamburger, Is Administrative Law

Unlawful? 86 fn. b (2014). Similarly, Hamilton’s own

conduct as Treasury Secretary also tracks Federalist

75; although his circular to customs officers purported

to interpret their obligations under federal customs

statutes, he did not claim those interpretations would

bind private parties. Instead, the regulations only

bound customs officers, who could be fired for failure

to follow his instructions. Philip Hamburger, /s Admin-

istrative Law Unlawful? 89-90 (2014).

C. Congress May Not Delegate to the Ex-

ecutive the Authority to Make Law on

Important, Complex Subjects

Legislative power has also long been understood

as the power to decide, at a minimum, “important sub-

jects.” Wayman, 23 U.S. (10 Wheat.) at 43. Yet the mod-

ern intelligible principle test flips this on its head,

defending broad delegations as a “reflection of the ne-

cessities of modern legislation” to let the Executive de-

cide how to handle important “complex economic and

social problems.” Am. Power & Light Co. v. SEC, 329

U.S. 90, 105 (1946). See also Mistretta at 372 (“Con-

gress simply cannot do its job absent an ability to del-

egate power under broad general directives”). The

most comprehensive contemporary defense of the mod-

ern administrative state also embraces this theory, and

even claims that “the modern national administrative

state is the constitutionally mandated consequence of

delegation.” Gillian Metzger, Foreword: 1930s Redux:

The Administrative State Under Siege, 131 Harv. L.

Rev. 89 (2017) (arguing that sweeping delegations “are

necessary given the economic, social, scientific, and

technological realities of our day”).

But the Constitution provides no complexity ex-

ception to the carefully-calibrated separation of pow-

ers. And it certainly does not support the alchemical!

theory that unconstitutional delegations of sufficient

scope and duration transmute constitutional viola-

tions into constitutional obligations.

If anything, the founding generation understood

and even expected that strict constitutional con-

straints on government power would “defeat” “good

laws”—and they considered this an acceptable tradeoff

for the “advantage of preventing a number of bad

ones.” Alexander Hamilton, Federalist No. 73. In short,

the Constitution’s constraints on government power

were originally understood as a feature, not a bug.

And the theory that ‘complex’ problems justify

broad policymaking delegations flouts Wayman. Chief

Justice Marshall wrote that the more “important” the

policy subject, the more separation of powers demands

that Congress—and only Congress—provide the policy

answer. Wayman, 23 U.S. (10 Wheat.) at 43 (“important

subjects” must be “entirely regulated by the legislature

itself”).

Similar separation-of-powers concerns have ani-

mated this Court’s reluctance to read “ambiguous stat-

utory text” as congressional delegations of “enormous”

and “transformative” power to the executive. Util. Air

Regulatory Grp. v. EPA, 134 8S. Ct. 2427, 2444 (2014).

See also King v. Burwell, 135 S. Ct. 2480, 2489 (2015);

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 159-160 (2000). Although the major questions

doctrine in cases like UARG, King, and Brown & Wil-

liamson is a canon of statutory interpretation, it

shares a common constitutional DNA with the non-

delegation doctrine: at bottom, both are rooted in the

Constitution’s vesting of lawmaking power in Con-

gress, not the President.

Critics of nondelegation argue that legislation

properly promulgated under one of Congress’s enumer-

ated powers will, sometimes, require the President to

“fill up the details” to carry out Congress’s orders.

Wayman, 23 U.S. (10 Wheat.) at 43. But whatever it

might mean to let the President “fill up the details,” it

can’t mean “let the President make important policy

choices where the subject is complex.” After all, only

Congress can regulate “important subjects.” Jd. More

likely, to “fill up the details” means to delegate some

fact-finding and supervisory authority to the Presi-

dent. See, e.g., Marshall Field and Co., 143 U.S. at 693

(suspending embargo required after President “ascer-

tained the existence of a particular fact”).

And whatever else may be considered an ‘im-

portant subject’ which Congress alone must decide,

whether to criminalize conduct is certainly an im-

portant subject rather than a mere “detail” that can be

left to the Executive to “fill up.” See Evans, 333 U.S. at

486 (defining crimes and their punishments is a legis-

lative task).

D. Because the Separation of Powers Exists

to Protect Liberty, In Close Cases, the

Tie Should Go to Liberty

“Liberty demands limits on the ability of any one

branch to influence basic political decisions,” and the

Constitution’s separation of powers imposes those lim-

its. Clinton v. City of New York., 524 U.S. 417, 450-451

(1998) (Kennedy, J., concurring) (“one branch of gov-

ernment ought not possess the power to shape [the

people’s} destiny without a sufficient check from the

other two”). Indeed, the one consistent, recurring prin-

ciple in this Court’s nondelegation jurisprudence is

that the “ultimate purpose” of the doctrine “is to pro-

tect the liberty and security of the governed.” Metro.

Wash. Airports Auth. v. Citizens for Abatement of Air-

craft Noise, 501 U.S. 252, 272 (1991). See also Ass’n of

Am. R.R. at 1237 (Alito, J., concurring) (the Constitu-

tion’s separation of powers “exists to protect liberty”);

INS v. Chadha, 462 U.S. 919, 950 (1983) (describing

that the Framers expressed “the need to divide and

disperse power in order to protect liberty”).

During ratification, supporters of the proposed

Constitution often invoked its separation of powers to

defend against arguments the new federal government

would encroach on individual liberty. For example,

Convention delegate Pierce Butler wrote in a letter

that “(plains and attention were not spared” during the

Convention to “preserve to the individual as large a

share of natural rights” by balancing “the powers of the

three Branches, so that no one shoud [sic] too greatly

preponderate.” Pierce Butler, Letter to Weedon Butler,

The Records of the Federal Convention of 1787, Vol. 3.

Ed. Max Farrand, New Haven: Yale University Press,

1911. In Federalist No. 47, James Madison, quoting

Baron de Montesquieu, warned that “|t/here can be no

liberty where the legislative and executive powers are

united in the same person, or body of magistrates.” For

that reason, the “enlightened patrons of liberty” regard

“(njo political truth” as “of greater intrinsic value than

the separation of powers. And in Federalist No. 51,

Madison argued that “separate and distinct exercise of

the different powers of government” is “admitted on all

hands to be essential to the preservation of liberty.”

The many statements by the founding generation

and this Court that the separation of powers is essen-

tial to protect individual liberty suggest that when

courts are weighing nondelegation challenges, they

should consider what effect a delegation would have on

liberty. And in close cases, the tie should go to liberty.

* * *

To decide this case, the Court need not stray

from its description in Wayman of the Federal Govern-

ment’s structure created by the Vesting Clauses—a

description which has not been improved upon in

the subsequent 193 years: “the legislature makes, the

executive executes, and the judiciary construes the

law.” Wayman, 23 U.S. (10 Wheat.) at 46. The President

may not make law—and prosecutors may not create

crimes.

CONCLUSION

For the foregoing reasons, the Court shou!” re-

verse the decision below.

Respectfully submitted,

INSTITUTE FOR JUSTICE

SHELDON GILBERT*

DANA BERLINER

901 North Glebe Road

Suite 900

Arlington, Virginia 22203

(703) 682-9320

sgilbert@ij.org

*Counsel of Record

Counsel for Amicus Curiae

Institute for Justice

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.