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John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223 (2001).

Abstract: This article examines the Court’s practice of enforcing the nondelegation doctrine through the canon of constitutional avoidance rather than through Marbury-style judicial review. Traditionally, the Court has said that Congress may not delegate its Article I authority to administrative agencies. Nonetheless, under the prevailing “intelligible principle” test, the Court has almost never invalidated an Act of Congress on the ground that it delegates excessive discretion to an agency. Instead, the Court developed a practice of construing statutes to avoid what the Court regards as a grant of discretion broad enough to raise a serious nondelegation concern. Using the Court’s decision in FDA v. Brown & Williamson Tobacco Corp. as the primary example, this article questions the Court’s strategy of using the canon of constitutional avoidance to enforce the nondelegation doctrine. As many critics of the canon of constitutional avoidance have noted, that canon makes a difference only if it enables the Court to opt for something other than the best or most natural reading of a statute. In Brown & Williamson, which asked whether the FDA had statutory jurisdiction to regulate tobacco, the Court artificially narrowed the broad language of the Federal Food, Drug, and Cosmetic Act, in part, to avoid the inference that Congress had delegated power to regulate the tobacco industry without saying so explicitly. In reaching that conclusion, the Court used a number of specific interpretive techniques that it had, in other recent cases, deemed unreliable bases for identifying statutory meaning. This article argues that even if the Court embraces the canon of constitutional avoidance in other contexts, that approach seems a particularly inapt way to enforce the nondelegation doctrine. The entire point of the nondelegation doctrine is to ensure that Congress is responsible for basic statutory policy decisions. If, in the name of enforcing that doctrine, the Court effectively rewrites the statute, then it is not ensuring that Congress is responsible for the policy articulated in the (rewritten) statute. Indeed, building on work by Jerry Mashaw, this article suggests that using the canon of avoidance rather than judicial review to enforce the nondelegation doctrine may, if anything, be more corrosive of congressional prerogatives. If the Court invalidates a statute in the exercise of judicial review, then Congress must go back to the drawing board and bargain over how to enact its policy validly. If, however, the Court rewrites a statute, then the Court’s preferred policy point may become entrenched if it is closer to the preferences of the House, the Senate, or the President than to any alternative on which all three could agree.