New Paradigms Forum Proliferation Issues and Much More …


Crying Fowl? Nondelegation and “New START”

This certainly seems to be the week to think about what’s known as the nondelegation doctrine.  On Tuesday, when stopping to get a cup of tea in the Hudson Institute kitchen, I ended up in a conversation with a couple of my colleagues about the problems a democracy faces when its legislature routinely enacts bills so long and complex that no actual legislator is able to understand or even read them.  This subject came up in the context of someone’s reference to the comment by Senator Chris Dodd (D-CT) about his gargantuan financial reform bill that “[n]o one will know until this is actually in place how it works” –  a rather scandalous admission that, of course, did nothing to prevent him and his colleagues from approving it, nor President Obama from triumphantly signing it into law.  (Such are the joys of one-party governance when statist dirigisme waxes fashionable.)

Warming to this subject, one of my colleagues averred that one of the reasons we’re in this fix is because – as held in the famous Schechter Poultry case that I recall reading in law school – it is actually unconstitutional for the legislature to delegate raw legislative power to the Executive Branch.  One of the consequences of this nondelegation rule, he felt, was to encourage Congress’ worst instincts with regard to jamming endless levels of detailed regulation into statutory form.  In conjunction with Members’ affinity for burying in the deep labyrinths of legislative text their special deals with favored constituencies, this dynamic may have helped lead to the mammoth pieces of both unreadable and largely unread legislation that are so characteristic of modern American lawmaking.

I was happy enough to agree with the millions of my fellow citizens who bemoan the sorry state of our national legislature in 2010, of course, but our kitchen discussion also got me musing about other matters.  Having not thought about Schechter Poultry for a long time, but having been pondering the Obama Administration’s proposed “New START” agreement quite a lot recently, I began wondering whether that Treaty’s delegation of power to a new Bilateral Consultative Commission (BCC) raised Schechter problems.  The very next day, I opened the Washington Post to see an op-ed by law professors Jack Goldsmith and Jeremy Rabkin complaining about the breadth of the authority delegated to the BCC, and recounting that the D.C. Circuit Court of Appeals has begun in recent years to raise new questions about Executive delegations.  Hmmm.  Perhaps, I thought, there is indeed something to this.

With a tip of the hat to the serendipitous coincidence of our lines of thought, therefore, I thought it would be interesting to raise the Schechter-meets-New-START issue here on this website.  The case of A.L.A. Schechter Corporation v. United States, 295 U.S. 495 (1935), was a New Deal case challenging the Roosevelt Administration’s promulgation of a “Live Poultry Code,” which the Schechter slaughterhouse was subsequently found to have violated.  Appeals ensued, and the chicken company won the case, with a unanimous Supreme Court decision holding that the aforementioned code had been created unconstitutionally.

Ordinarily, one might think that the legality of chicken industry regulation in the Depression-wracked New  York of the 1930s should have nothing to do with a strategic nuclear arms agreement in recession-pained 21st-century Washington.  The interesting wrinkle, however, lies in the basis of one of the Court’s holdings in Schechter reversing the company’s conviction for violating the poultry code.  (The other ground for reversal had to do with interstate commerce regulation, and need not concern us here.)  According to Chief Justice Hughes, who wrote the opinion, the problem lay in the way in which the Executive Branch had been delegated the power to issue its “Live Poultry Code.”  The National Industrial Recovery Act (NIRA), a law duly passed by Congress, had given the president authority to promulgate “codes of fair competition” – which Franklin Roosevelt did, with regard to live poultry, in an executive order of April 1934.

The Supreme Court struck down the president’s poultry code because NIRA, the statue that authorized such executive enactments, had tried to give the Executive Branch too much authority to make laws on its own whim.  This was an “unconstitutional delegation of legislative power.”  “Congress,” the Court declared, “is not permitted to abdicate or to transfer to others the essential legislative functions with which it is … vested” by the U.S. Constitution.  NIRA had gone too far in empowering the Executive Branch to write U.S. laws.

This did not mean that Congress could not authorize the president to issue any law-like orders – or even ones, like the Live Poultry Code, that had penal implications.  Instead, it meant only that if Congress did so, it had to provide him with sufficient criteria to constrain the exercise of his unfettered discretion.  Clear enough guidance had to be given, in other words, that the Executive Branch could fairly be said to be merely executing the will of the legislature in drafting the specifics of any such law.  NIRA, it would appear, might have been constitutional if it had “undertake[n] to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure.”  Since the statute had, however, instead prescribed only the most vague and general of standards to guide Executive Branch discretion – leaving “virtually unfettered” the president’s power to make laws under its aegis – NIRA was, in this regard at least, held to be unconstitutional.

Schechter is certainly not the only case to address what has come to be known as the “nondelegation doctrine,” but it is the emblematic case and the most famous invocation of this idea.  But I can almost hear you wondering: what on earth is Schechter’s relevance to the “New START” agreement?  The answer has to do with the Bilateral Consultative Commission (BCC).

Recall that under Part Six of the “New START” Protocol, the BCC is called upon to resolve compliance questions, determine how to distinguish Treaty-regulated missiles from other missiles, decide how the Treaty applies to “new kind[s] of strategic offensive arm[s],” and “[a]gree upon such additional measures as may be necessary to improve the viability and effectiveness of the Treaty.”  Article XIII of the Treaty itself also gives the BCC the job of “resolv[ing] any ambiguities that may arise” in order to “ensure the viability and effectiveness of the Treaty.”  Most broadly, Article XV(2) actually authorizes the BCC to make changes to the Protocol – which includes the Treaty’s verification mechanisms as well as the provisions defining the BCC’s own responsibilities.  Obama Administration officials defend this broad grant of authority to the BCC as being necessary in order to ensure effective administration of the agreement.   Conservatives are more skeptical, and the BCC has already become quite controversial.

The propriety of the BCC’s authority should be examined carefully.  Under the U.S. Constitution, there is no question that treaty-making is a form of lawmaking.  Article VI specifies, for instance, that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”  Article II, Section 2 of the U.S. Constitution empowers the president to “make Treaties,” but it also specifies that the Senate must approve them by a two-thirds vote.  Treaty-making is thus a joint Executive-Legislative action, in which the Senate is the repository of Congressional power in this form of lawmaking.

The “New START” agreement and its Protocol have quite properly been submitted to the Senate for that body’s advice and consent pursuant to Article II, Section 2 of the Constitution.  With Senate approval, the Treaty and Protocol would indeed become part of the “supreme Law of the Land” under Article VI.  The BCC, however, is expressly to be given the power to rewrite the Protocol on its own, with any such changes presumably having no less legal force than the original Senate-approved text of the Protocol.  This necessarily means that the president, acting through his BCC representatives, would be engaged in lawmaking – with U.S. diplomats at the BCC sharing the legislative power of treaty-making under the U.S. Constitution not with the Senate but in fact with Russian diplomats, of all people.

Does this raise nondelegation problems under the Supreme Court’s Schechter case and its judicial progeny?  I’d be the first to admit that my nondelegation legal scholarship is a bit rusty, but I cannot think of any grounds for exempting the treaty power from nondelegation rules.  Perhaps there is indeed some reason why treaty-making, as an entire type of lawmaking authority, falls outside the Schechter principle that Congress may not transfer its essential legislative powers to others.  Unless such an exemption can be identified, however, the Obama Administration may have to defend its new arms agreement against nondelegation challenge.  If it cannot do so, serious constitutional questions might arise about the Senate’s ratification of the new Treaty and its Protocol.

So, do “New START” and its Protocol provide standards to guide presidential discretion in the BCC that are clear enough that those instruments can be sufficiently distinguished from Schechter’s NIRA to survive judicial scrutiny?  One wonders.  Strikingly little seems to be provided in the new agreement with regard to guiding the president’s exercise of discretion at the BCC in interpreting the Treaty and its Protocol – and even less is apparent with regard to how BCC representatives should employ their power actually to rewrite the terms of that Protocol.

To be sure, Article XV(2) of the Treaty makes clear that the BCC may not change the basic substantive rights and obligations written into the Treaty.  Since the BCC is expected under Article XII to serve as a forum for resolving questions about what those rights and obligations are in the first place, however, it is not quite clear how much of a restriction that really is.  Nor is the Treaty itself the only enactment that would have the force of law here: the Senate-approved Protocol would also become part of our “supreme Law of the Land,” and yet the BCC is expressly given authority by Article XV(2) to revise that Protocol on its own.  This question deserves deeper treatment on the basis of current nondelegation case law than is possible here, but there is reason for concern that the BCC’s broad grant of authority raises constitutional questions.

All is not lost, however.  In an earlier NPF posting in which I outlined how “New START” could be made acceptable to conservatives, I suggested ways in which the Senate could use its power of attaching reservations to its approval of the Treaty and its Protocol, or reach some separate agreement with the Executive Branch, that would limit the president’s exercise of discretion in the BCC.  I suggested, for instance, that the Executive Branch be instructed that U.S. representatives at the BCC shall not accept any modification of the provisions of the Protocol that define the Commission’s own authority unless such changes are subjected to Senate advice and consent, and that they be enjoined from using their treaty-interpretive powers to adopt any interpretation that would tend to suggest that the Treaty imposes any kind of limitation upon U.S. ballistic missile defense.  Such “add-on” guidance – which could also reach general principles of treaty verification and compliance if Senators felt it useful to provide standards to shape American positions in future BCC disputes with Russia – would do much to make the president’s delegated authority in the BCC seem less problematically unconstrained.

“New START’s” potential nondelegation problem provides a good reason for the Senate to articulate limits upon the exercise of presidential discretion in the BCC.  The Executive Branch would surely be far better equipped to fight off nondelegation challenges if, as part of the ratification process, the Senate – as the repository of Congressional power in this particular form of lawmaking – were to offer clearer standards.  Since such de facto limits on the authority of the BCC would probably also go a long way toward making the new agreement more palatable, on substantive grounds, to Senate conservatives worried about the BCC’s ability to skew treaty interpretation in troublesome directions, this would seem to offer a good opportunity for the Obama Administration and the Senate to work out a deal.

-- Christopher Ford

About Dr. Ford

Dr. Christopher Ford took office in January 2018 as the U.S. Assistant Secretary of State for International Security and Nonproliferation. In October 2019, he was delegated the authorities and responsibilities of the Under Secretary of State for Arms Control and International Security. Previously, he served as Special Assistant to the President and Senior Director for WMD and Counterproliferation on the U.S. National Security Council staff, and before that as Chief Legislative Counsel for the U.S. Senate Foreign Relations Committee, Chief Investigative Counsel for the Senate Banking Committee, Republican Chief Counsel for the Senate Appropriations Committee, Senior Fellow at Hudson Institute, U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard (summa cum laude), Oxford (as a Rhodes Scholar), and the Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage of Soto Zen Buddhism. He was a jujutsu student of the late Grandmaster Dong Jin Kim of the Jigo Tensin Ryu lineage, and is a member of Dai Nippon Butoku Kai with Sandan (3rd degree black belt) rank. Dr. Ford served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve, and is a member of the International Institute for Strategic Studies, Chatham House, and the Council on Foreign Relations. In September 2017, he was promoted by Queen Elizabeth II of England to the rank of Commander in the Most Venerable Order of the Hospital of Saint John of Jerusalem. Dr. Ford is the author of the books "China Looks at the West: Identity, Global Ambitions, and the Future of Sino-American Relations" (2015), "The Mind of Empire: China's History and Modern Foreign Relations" (2010), and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005). He also co-edited "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012). For a list of his publications, see The views he expresses on this website are entirely his own, and do not necessarily reflect those of anyone else, nor those of the U.S. Government.
Comments (0) Trackbacks (0)

Sorry, the comment form is closed at this time.

Trackbacks are disabled.

NPF Pages

Recent Additions to NPF

NPF Discussion Pages

Calendar of NPF Postings

November 2020
« Oct    

NPF Archives (by month)