Nondelegation Doctrine Prevents 'Soft Dictatorship,' Learning Resources Amici Curiae Brief Argues
Two more legal scholars on Oct. 22 added their amici curiae brief to a stack before the Supreme Court for its upcoming ruling on Learning Resources and V.O.S. Selections. They focused on the danger an unlimited executive tariff authority would pose to the separation of powers (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
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The filers, University of California Davis constitutional law professor Vikram Amar and former U.S. representative and Harvard Kennedy School professor Mickey Edwards, said that the Supreme Court should take “particular caution” in these cases.
“[I]t is difficult for Congress to ‘retrieve’ power that a court has erroneously concluded was conferred,” they said.
As others have, they disagreed that the International Emergency Economic Powers Act was intentionally drafted to give the president the power to impose tariffs. But they focused on the major questions and nondelegation doctrines, and, particularly, on “this ‘retrieval problem.’”
Historically, they said, power delegated to the president has “been a one-way ratchet.” The presidential office naturally seeks to maintain its power, they said, so the president is incentivized to veto any legislation that would reduce it. And veto overrides, which require two-thirds approval in both the House and the Senate, are “rare feats,” they said.
Further, once a legislative power has been delegated, “there is little Congress can do to prevent that power from being exercised in ways not contemplated by the original delegators,” they said.
On the other hand, if the courts interpret a statutorily authorized grant of executive power too narrowly, Congress must simply pass a law to correct them, the amici said. As a result, they said, the cost of a court interpreting a grant of presidential authority too narrowly is lower than the cost of it interpreting that grant too broadly.
The two scholars also cautioned against “the concentration of too much authority in the hands of a single person,” which “risks converting constitutional democracy into soft dictatorship.”
This is the fundamental reasoning underlying the nondelegation doctrine, which prohibits Congress from delegating certain powers to the executive branch, they said.
Examining the nondelegation doctrine’s history and scholarship, they acknowledged that the Supreme Court has only struck down laws twice on the basis of the nondelegation doctrine -- the court “has more frequently invoked related nondelegations canons.” But they agreed with the Court of International Trade that the “major questions” doctrine, which “this Court has discussed in recent terms,” is “a variation” of nondelegation that likewise safeguards the separation of powers.
“This prudential practice of construing allegedly broad statutory conferrals of power to the President narrowly -- notwithstanding the President’s insistence that broad power has been delegated -- has the constitutionally salutary effect of minimizing irretrievable delegations of power and the practically salutary effect of minimizing the ordinary costs of judicial error,” they said.