An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law
Private entities often administer federal law. The early-twentieth-century Supreme Court derived constitutional limits to delegations of administrative power to private entities, grounding them in Article I of the Constitution where legislative power is delegated and in the Due Process Clause where the delegee’s bias is apparent. But limits to the delegation of executive power to private administrators of law might exist in Article II. Those limits— in particular, their scope and the interplay among them—have been left underdeveloped by existing scholarship.
This Article explores the possibility of an Article II executive-power nondelegation doctrine for the private administration of federal law, and develops one potential framework for its analysis. Drawing force from the Vesting Clause, and informed primarily by the Take Care and Appointments Clauses, the doctrine might involve two inquiries: (1) Does the delegated task implicate “[t]he executive Power” that the Constitution vests in the President—a power, in the words of the Take Care Clause, to “take Care that the Laws be faithfully executed”? (2) If so, is the delegee a proper subordinate to the President, so that his performance of such executive tasks does not divest the President of “[t]he executive Power”? As the Article explains, a rigid unitary executive approach— which demands complete presidential control over every task connected with the execution of law—is not the only coherent way to understand Article II’s Vesting Clause to restrict delegations of executive power. Under the Supreme Court’s Article II precedent, the doctrine’s inquiries might depend instead on the nature of the task and the form, degree, and directness of presidential oversight or control available over the task or over the one performing it, flexibly allowing for certain trade-offs among those control mechanisms, so long as the President remains accountable for the execution of law. By conceptualizing Article II as imposing a non-delegation analysis, this Article observes how the Vesting Clause might constrain certain delegations of power over law’s execution that are made by the President and executive branch, not simply those made by Congress.
Law Research Fellow, Georgetown University Law Center. For helpful discussions or comments, I thank Will Baude, Caroline Cecot, Michael Coenen, Benjamin Eidelson, Heather Gerken, Christopher Griffin, Daniel Hemel, Christine Jolls, Gary Lawson, Marty Lederman, Sophia Lee, John Mikhail, Nicholas Parrillo, Richard Re, Ted Ruger, Stephen Sachs, Peter Schuck, Larry Solum, David Super, Matthew Tokson, David Vladeck, Robin West, Tobias Wolff, Ernie Young, Aaron Zelinsky, and Georgetown Law Fellows’ Colloquium participants. I thank the editors of the Vanderbilt Law Review—particularly Joshua Foote and Tomi Mendel—for their careful and thoughtful edits. And I thank Benjamin Shultz for personal encouragement. All errors are my own, and the views set forth herein are based on my own research and do not necessarily reflect those of any individual or institution with which I am or have been associated.