CARDOZO LAW REVIEW [Vol. 20:861 1999]
DELEGATION AS A DANGER TO
I am delighted to participate in this important symposium. I am not an
expert on the regulatory process or administrative law. Rather, my expertise
and concerns are in the area of individual freedom. Accordingly, my interest in
the delegation issue is rooted in my commitment to liberty.
In significant respects, liberty is threatened when the law-making
function of government is delegated to unelected, unaccountable bureaucrats. In
his pivotal opinion in the landmark case of Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, Justice John Marshall
Harlan reminded us that members of Congress, along with state legislatures, are
“ultimate guardians of the liberties and welfare of the people in quite as
great a degree as the courts.” Justice Harlan’s
statement prompts this question: What exactly is Congress’
essential constitutional role as a guardian of liberty? And this question, in
turn, triggers another: What is the relevant concept of liberty?
For the Framers of the Constitution, liberty was essentially the right
to be left alone by government unless some important public purpose warranted
intervention. The modern Supreme Court has embodied this concept
in the so-called heightened scrutiny standards of judicial
To protect liberty, thus understood, the Framers adopted several
complementary strategies. Of these strategies, modern case law has most
frequently addressed the judicially enforceable rights that are expressly
articulated, notably, those found in the Bill of Rights. These constitutionally
enumerated rights prohibit specified types of government actions, such as
censoring speech or preventing the free exercise of religion.
Important as they are, explicit constitutional rights are not
co-terminous with the Framers’ appropriately broad concept of
liberty. Rather, from the broad array of possible government
actions that undermine liberty, these express rights carve out a few such
actions that are barred, or at least subject to close judicial scrutiny. These
rights generally concern those government actions that are particularly likely
to lack an important public purpose or to present a peculiarly grave threat to
individual freedom. But these explicit constitutional rights do not protect us
from many other threats to our liberty — our right to be let alone absent
the need to promote an important public purpose. In short, these
judicially enforceable, express constitutional rights do not, in many
circumstances, stop government from imposing regulations or taxes for what are
actually private purposes.
Because explicit constitutional rights fall short of fully guaranteeing
the Framers’ conception of liberty, we must look elsewhere for further
protection. One possible source of such further protection is contained within
the legislative process defined in Article I — a second essential strategy
that the Framers designed to protect liberty. This complementary strategy
actually preceded the development of enumerated judicially enforceable
rights. In fact, Alexander Hamilton opposed adding a bill of
rights to the Constitution on the ground that “the constitution is itself
in every rational sense, and to every useful purpose, A BILL OF
Hamilton was wrong in concluding that the Constitution, including the
Article I legislative process, makes a bill of rights superfluous, as his
contemporaries fortunately perceived and history has proved. But Hamilton was
correct in concluding that the legislative process significantly helps to
Delegation of this constitutionally defined lawmaking power to
regulatory agencies undercuts its important protection of liberty in four ways.
First, delegation shifts power from Congress and the President — two
highly visible institutions that are responsive to a broad spectrum of
interests — to various agencies, commissions, and boards —
lower-visibility institutions that are attuned to only a small subset of all
the interests. According to the political science literature, agencies are
dominated by their top officials, a small group of persons from the private
sector, and a few key members of Congress. As John Hart Ely
observed, “one reason we have broadly based representative assemblies is
to await something approaching a consensus before government
intervenes.” But no such consensus is needed when
legislative power is delegated.
Second, delegation allows legislators and the President to shift much of
the blame for unpopular government policies to the agencies. Therefore, an
important deterrent to enacting unpopular laws does not deter unpopular
Third, delegation makes it far easier to impose new laws. In James
Madison’s words, Article I was meant to curb the “facility and excess
of lawmaking” by requiring that statutes go through a bicameral
legislature and the President. Madison’s view that the
legislative process would tend to discourage narrowly partisan laws —
though not eliminate them — has been borne out by much recent political
science literature. The differing constituencies of
representatives, senators, and the President — and the differing lengths
of their terms in office — make it likely that they will be partial to
varying interests. This diversity of viewpoint, coupled with the greater
difficulty of prevailing in three forums rather than one, means that popular
support sufficient to produce a bare majority in a unicameral legislature would
probably fail to get a statute through the Article I
The fourth respect in which delegation threatens liberty is
consolidation of lawmaking and law enforcement power in the same
I do not mean to suggest that agencies can make whatever laws they want,
whenever they want. The constraints on agency lawmaking that do exist, however,
do not adequately protect individual liberty. First, agencies must comply with
the Administrative Procedure Act. As the name suggests, though,
those requirements are simply procedural in nature. They merely slow down
agency lawmaking and do not necessarily weed out laws that violate liberty or
lack an important public purpose.
Second, persons affected by agency-made law do have a right to seek
judicial review. But such review is usually highly deferential.
Agencies have learned to shield even narrowly partisan regulations from
judicial reversal by presenting them as the product of reasoned analysis aimed
at promoting a public purpose.
Even if the reviewing court finds some flaw in the agency’s
analysis, the agency remains free to reach the same result backed by a new
explanation that is crafted to overcome the court’s prior
criticism. In the words of University of Texas law professor
An agency desiring a particular policy outcome can [survive judicial
review through] the charade of hearing from everyone interested, responding to
their views and data in rational discourse, and elaborating a rationale for the
decision that is coherent, supported by the administrative record, and
consistent with prior agency policy and known statutory
My point is not that administrative procedure and judicial review of
agency action are worthless in protecting liberty. Rather, my point is that the
legislative process is more effective than the administrative process in doing
so. The United States Supreme Court apparently agrees. Consider, for example,
its 1958 ruling in Kent v. Dulles. In Kent, the
Court chose to construe narrowly a statute that gave the Secretary of State
discretion to issue or deny passports. Specifically, the Court held that the
statute did not authorize the Secretary’s regulations denying passports to
people affiliated with the Communist Party. The Court’s
opinion, written by the great civil libertarian, Justice William O. Douglas,
well describes delegation’s adverse impact on liberty. He wrote:
[T]he right of exit is a personal right included within the word
“liberty” as used in the Fifth Amendment. If that “liberty”
is to be regulated, it must be pursuant to the lawmaking functions of the
Congress.... Where activities or enjoyment, natural and often necessary to the
well-being of an American citizen, such as travel, are involved, we will
construe narrowly all delegated powers that curtail or dilute them. We hesitate
to find in this broad generalized power an authority to trench so heavily on
the rights of the citizen.
The cornerstone of the Court’s conclusion was that the legislative
process offers a protection for liberty for which the administrative process is
not an adequate substitute. Unfortunately, despite Kent’s broad
wording, later Supreme Court decisions have not so strictly limited delegated
lawmaking, even when it entrenches upon First Amendment rights.
I would now like to move from the abstract to the concrete, to describe
three specific examples of the many actual situations where delegation has in
fact undermined liberty, in particular, the precious freedom of speech that
many consider an especially important aspect of liberty.
The first example centers around the infamous gag rule issued by
the Department of Health and Human Services (“HHS” in
1988. It prohibited employees of federally-funded family
planning clinics from giving any information to their patients about abortion,
even when the patients asked about it, and even when abortion
was medically indicated — in other words, even when the woman’s
health would be undermined by carrying the pregnancy to term. At
that time, HHS could never have garnered the majorities in the House and the
Senate that would have been needed to enact such a bar in statutory
form. Undeterred, the HSS made the law itself.
The ACLU challenged the gag rule all the way up to the Supreme Court, where it
lost, five to four. A narrow majority of the Justices held that the gag rule
did not violate any constitutional rights, neither the explicit right of free
speech, nor the implicit right of reproductive
Moreover, departing from Kent v. Dulles, the Court
also stretched to find statutory authorization for HHS’s regulatory ban on
abortion information. The statute in question barred federally-funded family
planning clinics from performing abortions. It certainly did not
expressly authorize a ban on information about abortion. The Court
reasoned, nevertheless, that the statute also did not expressly bar such
a ban. As Justice Stevens noted in his dissent, “[i]n a
society that abhors censorship and in which policy-makers have traditionally
placed the highest value on the freedom to communicate, it is unrealistic to
conclude that statutory authority to regulate conduct implicitly authorized the
Executive to regulate speech.”
Thanks to the majority’s opinion, those who opposed the ban on
abortion information as violating free speech and reproductive freedom, not to
mention on important public health policy grounds, could only protect these
vital rights and interests by enacting a statute. Large
bipartisan majorities in both houses did support a statutory repeal of the gag
rule, but not the two-thirds supermajorities needed to override President
Bush’s veto. The override failed by twelve votes. In this
situation, accordingly, delegation created a cruel irony: the hurdles that had
been built into the legislative process to protect liberty instead obstructed
For a second specific example of delegation’s anti-liberty impact,
consider the regulations designed to curb smoking that were proposed by the
Food and Drug Administration (“FDA” in 1995. These
regulations included restraints on tobacco advertising in the print media and
on billboards, raising very serious First Amendment
Congress has not outlawed such advertising. Rather, the FDA claimed
authority to enact the regulation under a broadly worded
delegation. The FDA said that it would withdraw the proposed
regulation only if Congress were to enact a similar statute.
Therefore, even if both houses of Congress passed a bill barring FDA regulation
of tobacco advertising, the presidential veto that would likely
follow and the probable lack of congressional supermajorities to
override it would mean that the FDA could still regulate this
speech. Once again, as in the gag rule situation, thanks to delegation, the
hurdles that were built into the legislative process to protect liberty
ironically end up obstructing its protection.
A third example of delegated lawmaking that undermined liberty involved
the 1975 sanction by the Federal Communications Commission (“FCC” of
Pacifica Radio for broadcasting George Carlin’s famous “Seven Dirty
Words” monologue. The FCC based its decision on statutory
language prohibiting the broadcast of “obscene, indecent, or profane
language.” The Supreme Court ultimately upheld the FCC on
the ground that the broadcast, while not obscene, was indecent
under the statute. But the term indecent is so open-ended
as to confer on the FCC virtually unlimited lawmaking authority.
Indeed, the United States Court of Appeals for the District of Columbia Circuit
had reversed the FCC’s opinion on the ground that it was rulemaking in
disguise and that the resulting rule was overbroad. The upshot
of this delegation was that the FCC got to be both lawmaker and law enforcer
over the content of constitutionally protected speech to boot.
The Supreme Court has seen fit to tolerate most delegation.
Whether or not this tolerance is justified, Congress has
an independent duty to protect liberty by exercising its responsibility to make
* Professor of Law, New York Law School; President, American Civil
Liberties Union. For research and administrative assistance in preparing this
piece, Professor Strossen thanks her academic assistant, Amy L. Tenney, and her
research assistants, Ili Graeler, Jenean M. Klein, and Mark A. Konkel. She also
gratefully acknowledges the inspiration and insights of her NYLS colleague,
Professor David Schoenbrod.
 403 U.S. 388 (1971).
Id. at 407 (quoting Missouri, Kan., & Tex. Ry.
Co. v. May, 194 U.S. 267, 270 (1904)).
See Olmstead v. United States, 277 U.S. 438, 478
(1928) (Brandeis, J., dissenting) (“The makers of our Constitution ...
conferred, as against the Government, the right to be let alone — the most
comprehensive of rights and the right most valued by civilized men.”
overruled by Katz v. United States, 389 U.S. 347 (1967).
See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES § 6.5, at 414-17 (1997) (describing the history
of, and the reasoning behind, levels of scrutiny in constitutional review).
See U.S. CONST. amend. I.
See Clinton v. City of New York, 118 S. Ct. 2091,
2109 (1998) (Kennedy, J., concurring):
In recent years, perhaps, we have come to think of liberty as defined by
that word in the Fifth and Fourteenth Amendments and as illuminated by the
other provisions of the Bill of Rights. The conception of liberty embraced by
the Framers was not so confined. They used the principles of separation of
powers and federalism to secure liberty in the fundamental political sense of
the term, quite in addition to the idea of freedom from intrusive governmental
See U.S. CONST. amend. IX (“The enumeration
in the constitution of certain rights shall not be construed to deny or
disparage others retained by the people.” see also Randy E.
Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1, 15
See Clinton, 118 S. Ct. at 2103 (noting that
“[t]he procedures governing the enactment of statutes set forth in the
text of Article I were the product of the great debates and compromises that
produced the Constitution itself,” and striking down the Line Item Veto
Act for violating those procedures); INS v. Chadha, 462 U.S. 919, 951 (1983)
(“It emerges clearly that the prescription for legislative action in
[Article I], represents the Framers’ decision that the legislative power
of the Federal Government be exercised in accord with a single, finely wrought
and exhaustively considered, procedure.” DAVID SCHOENBROD, POWER WITHOUT
RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 29 (1993)
(stating that the Constitution’s “baroque” legislative process,
set out in Article I of the Constitution, safeguards liberty); see also
John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L.
REV. 673, 708 (1997) (concluding that the checks and balances included in
Article I were “key element[s] of the constitutional scheme to preserve
 THE FEDERALIST NO. 84, at 515 (Alexander Hamilton)
(Clinton Rossiter ed., 1961); see also Clinton, 118 S. Ct. at 2109
(Kennedy, J., concurring) (“So convinced were the Framers that liberty of
the person inheres in structure that at first they did not consider a Bill of
See LAWRENCE C. DODD & RICHARD L. SCHOTT,
CONGRESS AND THE ADMINISTRATIVE STATE 308-09 (1979).
 JOHN HART ELY, DEMOCRACY AND DISTRUST 134 (1980).
See SCHOENBROD, supra note 8, at 9.
 THE FEDERALIST NO. 62, supra note 9, at 378
See, e.g., SCHOENBROD, supra note 8, at
See, e.g., INS v. Chadha, 462 U.S. 919, 959
(1983) (“The choices we discern as having been made in the Constitutional
Convention impose burdens on governmental processes that often seem clumsy,
inefficient, even unworkable, but those hard choices were consciously made by
men who had lived under a form of government that permitted arbitrary
governmental acts to go unchecked.”)
See WILLIAM F. FUNK ET AL., ADMINISTRATIVE
PROCEDURE AND PRACTICE: PROBLEMS AND CASES 22 (1997) (referring to
administrative agencies as a “headless Fourth Branch of government”
because of their ability to exercise legislative, executive, and
judicial functions even though the three traditional branches of government are
prohibited from doing so by the Constitution).
 Pub. L. No. 89-554, 80 Stat. 381 (codified as amended in
scattered sections of 5 U.S.C.).
See Chevron v. Natural Resources Defense Council,
467 U.S. 837, 843 (1984) (holding that, unless an agency decision is foreclosed
by law, it should be upheld by a reviewing court as long as it is a
“permissible construction of the statute” Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951) (holding that a court may overturn an agency
decision only if the court cannot “conscientiously find that the evidence
supporting the decision is substantial” in reviewing the entire record);
FUNK ET AL., supra note 16, at 269 (comparing the highly deferential
standard in judicial review of agency decisions to an appellate court’s
very deferential review of a trial court’s findings of fact).
See SCHOENBROD, supra note 8, at 114.
See id. at 115.
 Harold H. Bruff, Legislative Formality,
Administrative Rationality, 63 TEX. L. REV. 207, 239 (1984).
 357 U.S. 116 (1958).
See id. at 130.
Id. at 129 (citations omitted).
See, e.g., Smith v. California, 361 U.S. 147, 169
(1959) (Douglas, J., concurring) (“[The Court] recognizes implicitly that
these First Amendment rights, by reason of the strict command in that Amendment
— a command that carries over to the States by reason of the Due Process
Clause of the Fourteenth Amendment — are preferred rights.” Palko v.
Connecticut, 302 U.S. 319, 327 (1937) (Cardozo, J.) (stating that freedom of
speech “is the matrix, the indispensable condition, of nearly every other
form of freedom”).
See Prohibition on Counseling and Referral for
Abortion Services; Limitation of Program Services to Family Planning, 42 C.F.R.
§ 59.8 (1989) (effectiveness suspended Feb. 5, 1993).
See id. § 59.8(b)(5) (mandating that the
project counselor tell pregnant women seeking information about abortions that
“the project does not consider abortion an appropriate method of family
planning and therefore does not counsel or refer for abortion”
See id. § 59.8(a)(2) (“In cases in
which emergency care is required, however, the title X project shall be
required only to refer the client immediately to an appropriate provider of
emergency medical services.”).
See SCHOENBROD, supra note 8, at 16
(explaining that in 1989, when HHS promulgated the gag rule, the House and
Senate had pro-choice and Democratic majorities).
 Indeed, several judges concluded that the rule was
unlawful on this basis, for exceeding or contravening the scope of the
legislative authority. Justice Blackmun, for example, found that “the
Secretary’s regulation of referral, advocacy, and counseling activities
exceed[ed] his statutory authority.” Rust v. Sullivan, 500 U.S. 173, 204
(1991) (Blackmun, J., dissenting). Further, Justice Stevens stated:
Not a word in the statute ... authorizes the Secretary to impose any
restrictions on the dissemination of truthful information or professional
advice by grant recipients.... [The] entirely new approach adopted by the
Secretary in 1988 was not, in my view, authorized by the statute. The new
regulations did not merely reflect a change in a policy determination that the
Secretary had been authorized by Congress to make. Rather, they represented an
assumption of policy-making responsibility that Congress had not delegated to
the Secretary. Id. at 221-22 (Stevens, J., dissenting) (citations
See id. at 192-200.
See id. at 201-02.
 357 U.S. 116 (1958).
See 42 U.S.C. § 300a-6 (1994) (“None of
the funds appropriated under this title shall be used in programs where
abortion is a method of family planning.”).
See Rust, 500 U.S. at 184 (“Based on the
broad directives provided by Congress in Title X in general and § 1008 in
particular, we are unable to say that the Secretary’s construction of the
prohibition in § 1008 to require a ban on counseling, referral, and
advocacy within the Title X project is impermissible.”).
Id. at 222.
See He Defies the Majority on the Gag Rule, N.Y.
TIMES, Nov. 22, 1991, at A30; The Gag Rule, Gagged, N.Y. TIMES, Nov. 2,
1991, at A22 (stating that the gag rule denied “quality family planning
services” to clinic patients — most of whom are poor); Thumbing
His Nose at Congress, N.Y. TIMES, Nov. 22, 1991, at A30.
See sources cited supra note 37.
See Regulations Restricting the Sale and
Distribution of Cigarettes and Smokeless Tobacco Products to Protect Children
and Adolescents, 60 Fed. Reg. 41,314, 41,348 (1995) (to be codified at 21
C.F.R. pts. 801, 803, 804, and 897) (proposed Aug. 11, 1995), published as
final rule, 61 Fed. Reg. 44,396 (1996) [hereinafter Proposed Tobacco
In the case of cigarettes and smokeless tobacco, the primary mode of
action is that of a drug, due to the nicotine, and, therefore, primary
jurisdiction over these products belongs in [the FDA].... It is within
FDA’s discretionary power to determine which, if any, of the available
regulatory authorities it will employ in the regulation of a
But see Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d
155, 170 (4th Cir. 1998) (concluding that the FDA “did not have
jurisdiction to regulate tobacco products” petition for cert.
filed, 67 U.S.L.W. 3484 (U.S. Jan 19, 1999) (No. 98-1152).
See Proposed Tobacco Regulations, supra
note 39, at 41,374 (to be codified at 21 C.F.R. subpt. D, §§ 897.30,
See Tobacco Legislation: Is It Constitutional?:
Hearing Before the Senate Comm. on the Judiciary, 105th Cong. (1998)
(statement of Solange E. Bitol, Legislative Counsel, ACLU) (arguing that the
FDA’s proposed regulations are unconstitutional because broad restrictions
on billboard, internet, and other advertising are not narrowly tailored enough
to justify curtailing First Amendment rights); Id. (statement of Burt
Neuborne, Professor of Law, New York University School of Law) (finding that
the FDA’s proposals to restrict tobacco advertising are “simply far
too broad” and would be found unconstitutional by the Supreme Court);
see also Barbara Dority, The Rights of Joe Camel and the Marlboro
Man; Cigarette Advertising Restrictions, HUMANIST, Jan. 11, 1997, at 34
(quoting Northwestern University law professor and First Amendment expert
Martin Redish as stating that “[t]here are serious constitutional problems
with the majority of the new [tobacco] regulations”).
See 21 U.S.C. § 353(g)(1) (1994) (“The
Secretary shall designate a component of the Food and Drug Administration to
regulate products that constitute a combination of a drug, device, or
biological product.” id. § 321(h)(3) (giving the FDA
jurisdiction to regulate any “devices” “intended to affect the
structure or any function of the body” FDA, Executive Summary: Annex:
Nicotine in Cigarettes and Smokeless Tobacco Is a Drug and These Products Are
Nicotine Delivery Devices Under the Federal Food, Drug, and Cosmetic Act:
Jurisdictional Determination (visited Nov. 23, 1998) (concluding that
cigarettes and smokeless tobacco products are drugs and devices under the
FDA’s jurisdiction). But see Brown & Williamson Tobacco Corp.,
153 F.3d at 170; Rep. Ed Whitfield, FDA Has No Authority to Regulate
Tobacco, ROLL CALL, June 10, 1996, at 8 (stating that the FDA conceded in
1963 that it could not regulate tobacco because doing so would exceed its
statutory grant of authority).
See FDA Control Called Illegal, CHATTANOOGA FREE
PRESS, Aug. 11, 1995, at A1 (reporting that President Clinton suggested that
Congress should come up with compromise legislation in lieu of the FDA
See Charles J. Lewis, Teen Smoking Pits FDA
Against Tobacco Firms, TIMES UNION (Albany), Jan. 21, 1996, at A1 (stating
that President would veto any bill that exempted tobacco from the realm of the
See Charles J. Lewis, Tobacco Companies Plead
Case with $4.1M, TIMES UNION (Albany), Mar. 15, 1996, at A1 (quoting
Matthew Myers, an anti-smoking activist, as stating that “[Congress]
certainly [does not] have the votes to override a presidential veto”).
See FCC v. Pacifica Found., 438 U.S. 726
 18 U.S.C. § 1464 (1994).
See Pacifica, 438 U.S. at 741.
 The lower court that struck down the Communications
Decency Act (“CDA” which criminalized, inter alia,
“indecent” expression on the Internet, based its holding in part on
the fact that the undue vagueness of that term violated the Fifth
Amendment’s due process guarantee. See ACLU v. Reno, 929 F. Supp.
824, 856 (E.D. Pa. 1996) (Sloviter, J., plurality opinion); id. at 858
(Buckwalter, J., plurality opinion). While the Supreme Court did not reach the
Fifth Amendment vagueness claim, affirming instead the lower court’s
ruling on a First Amendment overbreadth rationale, the Court’s discussion
of the First Amendment issues revealed substantial concerns about the vagueness
of the CDA’s operative terms, including “indecent.” See
Reno v. ACLU, 117 S. Ct. 2329, 2344 (1997) (“Regardless of whether the CDA
is so vague that it violates the Fifth Amendment, the many ambiguities
concerning the scope of its coverage render it problematic for purposes of the
See Pacifica Found. v. FCC, 556 F.2d 9, 10 (D.C.
Cir. 1977); see also id. at 20 (Bazelon, J., concurring).
 I am not endorsing Congressman J.D. Hayworth’s
bill, The Congressional Responsibility Act of 1997, H.R. 1036, 105th Cong.
(1997), or any other specific legislation on the delegation issue at this
point. The ACLU is nervous about jeopardizing particular regulations that
affirmatively promote liberty. Given a Congress that is hostile to many civil
liberties, these regulations are an especially important tool for us now. But,
as I have also noted, in some political contexts, regulations can subvert
liberty, even when Congress seeks to protect it. Therefore, I applaud and thank
Professors Hamilton and Schoenbrod for organizing this important symposium,
which focuses attention on Congress’ constitutional duty to protect
liberty by exercising its responsibility to make law through the specified
Article I process. I look forward to further discussions about how best to
implement that important duty.