What is the constitutional lawmaking power? In Department of Transportation v. Association of American Railroads, the Justices expressed a spectrum of tolerance for legislative delegations: banning the exercise of any lawmaking power by an entity other than Congress on one end, and condoning legislative delegations to agencies but not to the private sector on the other. Whether Congress’s quintessential constitutional role—lawmaking—is exclusively for Congress has enormous practical as well as theoretical implications.
Association of American Railroads involved a challenge to legislation authorizing Amtrak to jointly formulate with a federal agency “metrics and standards” for the performance and scheduling of passenger railroad services. The Court remanded to the Court of Appeals for the D.C. Circuit a number of issues of constitutional importance, including whether such metrics and standards “reflect the exercise of ‘rulemaking’ authority or permit Amtrak to ‘regulate other private entities’” so as to trigger nondelegation concerns.
Yet the question articulated for remand merely begs another one: how should constitutional lawmaking power be defined? In his concurrence, Justice Alito characterized the ban on congressional delegations of legislative authority as existing to ensure “accountability checkpoints.” At the same time, he acknowledged that agencies function under the guise of executive power “in ways that resemble lawmaking.” Justice Thomas wrote separately to define “certain core functions that require the exercise of legislative power and that only Congress can perform” as including the Blackstonian definition of “law,” to wit, “the formulation of generally applicable rules of private conduct.”
The difference between Justice Alito’s definition of lawmaking and that of Justice Thomas is of immense constitutional significance. If only Congress can formulate generally applicable rules of private conduct, the Code of Federal Regulations is unconstitutional. Justice Thomas’s definition would accordingly require the dismantling of the federal regulatory state. For his part, Justice Alito would draw the constitutional divide at the illusory line between the public and private sectors. Whereas “the other branches of Government have vested powers of their own that can be used in ways that resemble lawmaking,” he wrote, “[w]hen it comes to private entities . . . there is not even a fig leaf of constitutional justification.” Justice Alito’s definition of “legislative Powers” would preserve the administrative state but draw a sharper boundary around the kind of power that must be exercised by politically accountable actors. It calls into question the constitutionality of the federal government’s practice of outsourcing rulemaking functions to private contractors.
The competing opinions in Association of American Railroads reinvigorate a longstanding debate that goes to the heart of the separation of powers: What does Congress’s power to “make all laws” mean? Can Congress delegate any of that power to another entity? If so, to whom? Although conditional delegations of legislative authority to agencies have long been considered constitutional under the nondelegation doctrine, these questions carry pragmatic implications for mainstream administrative law doctrine as well as the structure of modern government itself. No uniform answers exist within the myriad separation of powers doctrines that bear on the scope of Congress’s lawmaking power.
This Article teases apart the various permutations of what the federal lawmaking power means, canvases the Court’s historical treatment of that question, and describes its practical implications as a matter of both constitutional and administrative law. It proposes a taxonomy of lawmaking in an effort to bring coherence to the task of defining the lawmaking power as well as Congress’s prerogative to exercise it.
