Notre Dame Law Review

Volume 81 | Issue 1 Article 8

11-1-2005

Rediscovering the Nondelegation Doctrinethrough a Unified Separation of Powers TheoryTravis H. Mallen

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Recommended CitationTravis H. Mallen, Rediscovering the Nondelegation Doctrine through a Unified Separation of Powers Theory, 81 Notre Dame L. Rev. 419(2005).Available at: http://scholarship.law.nd.edu/ndlr/vol81/iss1/8

REDISCOVERING THE NONDELEGATION

DOCTRINE THROUGH A UNIFIED

SEPARATION OF POWERS THEORY

Travis H. Mallen*

The accretion of dangerous power does not come in a day. It doescome, however slowly, from the generative force of unchecked dis-regard of the restrictions that fence in even the most disinterestedassertion of authority.

Justice Felix Frankfurter1

INTRODUCTION

The nondelegation doctrine has proven a seemingly unlimitedtopic for scholarly comment. In the last decade, no fewer than fiftyarticles have been published on the subject, 2 though this figure isprobably an understatement. Such scholarly attention is curious giventhe remarkable stability of the doctrine. Perhaps this is because of thecourts' reluctance to invoke the nondelegation doctrine as a meaning-ful check on legislative or executive power.

Since 1928, when the Supreme Court first articulated the "intelli-gible principle" test as the measurement standard for delegated legis-

* Candidate for Juris Doctor, Notre Dame Law School 2006; B.S., PoliticalScience, Arizona State University, 1999. I would like to thank my wife, Christy, mydearest love and friend, my children, Caitlin Rose and Liam, my inspiration and myjoy, for their unfailing support and patience. Thank you to Erin Gallagher and AndyDemko, whose suggestions helped me to focus this Note and improve its clarity andorganization greatly. Thanks also to the members of the Notre Dame Law Review fortheir efforts to bring this Note to publication. Finally, I would like to thank ProfessorPaolo Carozza for his valuable comments in the early drafts of this Note and ProfessorPatricia Bellia, whose Constitutional Law course sparked my curiosity for findingprincipled answers to constitutional problems.

I Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frank-furter, J., concurring).

2 Based on a search of Westlaw's database of 'Journals & Law Reviews Com-bined" (JLR) in August 2005 for article titles from the last ten years which include theterms "intelligible principle," "nondelegation doctrine," or "delegation doctrine."

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lative power,3 the Court has only invoked this test to strike down afederal law on two occasions, both times involving the same law.4

Even in those cases, the use of the intelligible principle test was eitherirreconcilable with subsequent application of the test or of questiona-ble precedential value. 5 Prior to the intelligible principle test, theCourt had never struck down a federal law on the basis of thenondelegation doctrine.

Despite its lack of use, the nondelegation doctrine remains anacknowledged limit on legislative power flowing from the principles ofseparation of powers. Its importance as a limit, however, has beenminimal, even while the nondelegation doctrine itself assumes specialimportance in the modern administrative state.

This Note argues that the nondelegation doctrine's lack of im-portance within broader separation of powers principles is a result ofthe intelligible principle test. This is so because the intelligible princi-ple test itself is divorced from other separation of powers principles,such as those found in the political question doctrine, the limits onindependent executive power, and bicameralism. To remedy thisweakness, this Note argues that the intelligible principle test shouldbe abandoned and replaced by a new test for measuring the limits tothe nondelegation doctrine. This test, the ancillary powers test, is de-rived from the broader principles of separation of powers, which rec-ognize both judicial deference to co-equal branches of thegovernment and limits on judicial competence. The ancillary powerstest examines the delegation of legislative power by Congress withinthe framework of independent power held by the Executive and Judi-ciary. In doing so, it allows for maximum judicial deference, while atthe same time providing a meaningful limit on congressionaldelegation.

Part I begins by summarizing both the origins and the contoursof the intelligible principle test. It continues by illustrating the weak-nesses of the intelligible principle test as an articulation of separationof powers principles. Finally, drawing on these principles, Part Ipresents the ancillary powers test in full. Part II provides a practicalapplication of the ancillary powers test in the context of foreign trade,an area with a deep historical connection to both the nondelegation

3 J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 404-09 (1928).4 See A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (in-

validating section 3 of the National Industrial Recovery Act of June 16, 1933, Pub. L.No. 73-67, 48 Stat. 195, 196); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) (invalidat-ing section 9(c) of the National Industrial Recovery Act ofJune 16, 1933, Pub. L. No.73-67, 48 Stat. 195, 200).

5 See discussion infra Part I.B.

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doctrine and the intelligible principle test. By applying the ancillarypowers test to sections 201 and 301 of the Trade Act of 1974, Part IIdemonstrates the ancillary powers test's flexible approach to definingthe outer limits of delegated power in differing situations as well as itssuperiority over the intelligible principle test as a meaningful articula-tion of the nondelegation doctrine.

I. INSTITUTIONAL COMPETENCE AS THE CORNERSTONE OF

SEPARATION OF POWERS

The nondelegation doctrine is a function of separation of pow-ers. It recognizes that only Congress may legislate in the true sense ofthe word. Above all, legislating, in its truest sense, means that onlyCongress may make the initial policy choice to govern a particularfield. This is what it means to be a legislator: deciding when, on whatsubject, and how to govern. No one could deny that while executiveand administrative rulemaking is lawmaking, it is not legislating be-cause the Executive acts after Congress has chosen to govern in thefirst instance. The Judiciary also engages in substantive lawmakingthrough the common law and statutory interpretation, as well as pro-cedural lawmaking when it establishes rules of procedure or evidence,whether through the Rules Enabling Act 6 or the common law. This isnot legislating in the truest sense as it involves either the courts' inter-pretive function or supervisory power. Whether judicial lawmakinginvolves statutory or common law interpretation or the exercise of su-pervisory power, Congress has either chosen to act in the first instanceor the lawmaking is an inherent function of the Judiciary.

Any time Congress passes a law, it effectively delegates some law-making to the Executive, the Judiciary, or both, as either or both willbe called upon to interpret that law, either in its execution or applica-tion. This sort of delegation does not offend the nondelegation doc-trine because, while it involves a delegation of lawmaking power, itdoes not turn judges or bureaucrats into legislators: those chargedwith making the initial decision to govern a particular field. Whilethere is room for disagreement over where judicial or executive inter-pretation ceases to in fact "interpret" a properly enacted statute andbecome legislating, this does not make the initial delegation an imper-missible delegation, nor can restrictive interpretation cure an other-wise impermissible delegation. 7

6 Pub. L. No. 73-415, 48 Stat. 1064 (1934) (codified as amended at 28 U.S.C.§ 2072 (2000)).

7 In Whitman v. American Trucking Ass'n, 531 U.S. 457 (2002), the Court stated

that the exercise of any discretion under an impermissible delegation of power

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The line between creating legislators and delegating some legisla-tive authority to those charged with executing or interpreting a lawmay be a fine one, but it is an important distinction for separation ofpowers purposes. The Court has tried to identify this line through theintelligible principle test, which focuses on the amount of discretionthe law leaves for execution or interpretation. Such a distinction,however, is not founded in separation of powers principles, whichlook at institutional competence-the type not the amount of discre-tion granted. At the same time, following separation of powers princi-ples, which focus on competence, the courts are slow to judge when agrant of discretion is too much. By divorcing the nondelegation doc-trine from separation of powers' traditional focus on competence, theintelligible principle test virtually assures that no law will ever befound to have violated the nondelegation doctrine. These weaknessesare addressed below in Part I.B.

To answer the weaknesses of the intelligible principle test, thisNote proposes an alternative mode of analysis for the nondelegationdoctrine: the ancillary powers test. The ancillary powers test over-comes the intelligible principle test's weaknesses by refocusingnondelegation analyses on the heart of separation of powers: institu-tional competence.8

A. The "Intelligible Principle" Test: A Brief Recap

The Court first recognized the nondelegation doctrine as a con-stitutional principle in Field v. Clark.9 In Field, the Court upheld achallenge to the Tariff Act of 189010 allowing the President to imposetariffs on certain commodities when the President found a countrywas exacting a "reciprocally unequal and unreasonable" duty on U.S.

"would itself be an exercise of the forbidden legislative authority." Id. at 473. Accord-ing to the Court, an agency's interpretation of a statute has no bearing on whetherthe statute in question impermissibly delegates legislative power, which is a questionfor the courts. Id. Whether a statute violates the nondelegation doctrine by imper-missibly delegating legislative power is determined from the statute itself, not fromagency interpretations. Following this logic, because a statute impermissibly delegat-ing legislative power cannot be saved by agency interpretation, an overly broad agencyinterpretation of a statute that effectively results in impermissible delegation of legis-lative power does not affect whether the courts will find that the statute itself dele-gates legislative power.

8 See infra Part I.C.9 143 U.S. 649, 692 (1892) ("That Congress cannot delegate legislative power to

the President is a principle universally recognized as vital to the integrity and mainte-nance of the system of government ordained by the Constitution.").

10 Ch. 1244, § 3, 26 Stat. 567, 612.

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agricultural products." The statute went on to prescribe the tariffsthe President was required to impose in such cases.1 2 The Court en-gaged in an exhaustive survey of similar statutes enacted since theWashington Administration.13 Most of these statutes involved recipro-cal treatment of goods based on the actions of foreign governments orprovided sanctions in response to military aggression, such as viola-tions of American neutrality by warring nations.' 4 These sorts of stat-utes have been subsequently described as contingent legislation,whereby upon the President's proclamation of a certain state of af-fairs, or condition precedent, a legislatively prescribed responsefollows. 15

In Field, the Court upheld the Tariff Act of 1890 holding thatCongress, not the President, had exercised all of the legislative powerin question. 16 Specifically, Congress established the contingencyunder which duty-free treatment of certain commodities would be sus-pended, set the rate imposed in case of such contingency, and onlyleft enforcement of this policy to the President, referring to the Presi-dent as a "mere agent of the law-making department" for purpose offinding a particular set of facts. 17

The next major step defining both the nondelegation doctrineand the President's powers in the area of tariffs came in J. W. Hamp-ton, Jr., & Co. v. United States. 8 Like the Tariff Act of 1890, the chal-lenged statute permitted the President to increase tariffs upon findinga specific condition precedent, in this case that the tariffs imposed bylaw failed to equalize the differences in costs of production betweenthe United States and the exporting country.' 9 The President wasthen required to determine the differences in production costs andincrease the tariff to equalize the costs. 20 The Court found that Con-gress intended that duties should equalize costs of production.21 TheCourt recognized the difficulty Congress would face in identifying andfixing every rate to meet this goal. 22 Under this standard, so long asCongress laid down an intelligible principle as well as its policy and

11 Field, 143 U.S. at 680.12 Id. at 681.13 Id. at 681-89.14 Id.15 See Star-Kist Foods, Inc. v. United States, 275 F.2d 472, 479 (C.C.P.A. 1959).16 143 U.S. at 693.17 Id.18 276 U.S. 394 (1928).19 Id. at 401.20 Id.21 Id. at 404.22 Id. at 407.

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plan, and one branch did not assume the constitutional field of an-other, no forbidden delegation occurred. 23

In the sixty years following J. W Hampton, the Court elaboratedon the functions of the nondelegation doctrine and the intelligibleprinciple test's role in supporting it.24 First, the nondelegation doc-trine ensures that the most important social policies are made by Con-gress. 25 Next, when Congress does delegate authority, it must providean "intelligible principle" to guide the exercise of the delegatedpower.2 6 This "intelligible principle," in turn, provides the courts witha standard against which to measure the exercise of the delegatedpower. 27 That is, it allows courts to evaluate whether the Executivehas stayed within the discretion granted by Congress. If, on the otherhand, the courts cannot discern the limits to the Executive's discre-tion, that is if Congress fails to provide an "intelligible principle," Con-gress has overstepped the nondelegation doctrine.

B. The Limits of Current Separation of Powers Doctrines

Since 1928, the Court has only invoked the nondelegation doc-trine to invalidate a statute on two occasions, and both cases dealt withthe same act. The first case, Panama Refining Co. v. Ryan,28 has beencriticized as irreconcilable with both previous and subsequent deci-sions.29 The second case, A. L. A. Schechter Poultry Corp. v. UnitedStates,30 is not good precedent in other ways.

First, commentators have described the delegation in Schechter as"the most sweeping congressional delegation of all time."3' 1 TheSchechter Court, however, focused on the vagueness and lack of stan-dards identifiable in section 3 of the National Industrial Recovery Actthat could serve as an intelligible principle. The Court described sec-tion 3 as nothing more than "general aims of rehabilitation, correc-tion, and expansion. '3 2 These "general aims," however, were certainlyno less "intelligible" than such standards as "in the public interest"

23 Id. at 404-09.24 See Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 685-86 (1980)

(Rehnquist, J., concurring).25 Id. at 685.26 Id. at 685-86.27 Id. at 686.28 293 U.S. 388 (1935).29 1 KENNETH CULP DAVIS & RicHARDJ. PIERCE, JR., ADMINISTRATIVE LAW TREATISE

§ 2.6, at 71 (3d ed. 1994).30 295 U.S. 495 (1935).31 DAVIS & PIERCE, supra note 29, § 2.6, at 71.32 Schechter, 295 U.S. at 541-42.

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and 'just and reasonable," which the Court has sustained sinceSchechter.3' Additionally, in Schechter the Court struck down the statuteon separate Commerce Clause grounds,3 4 applying the formalistic "di-rect versus indirect" impact test for interstate commerce long sinceabandoned by the Court.3 5 The Court's reliance on alternate groundsto decide the case gives its discussion of unconstitutional delegation ofpower the characteristics of obiter dicta, particularly given the some-what tautological manner in which the Court declared the standardslacking an "intelligible principle." 36

Because of the Court's failure to follow Panama Refining andSchechter in subsequent cases coupled with the absence of any guidingprinciples in these two cases, it is unsurprising that many commenta-tors and even the courts have come to view the nondelegation doc-trine as "moribund."3 7 Some commentators have gone so far as todeclare that the nondelegation doctrine has never in fact existed. 38

Of course, the nondelegation doctrine does exist, at least nomi-nally. The Court continues to reaffirm the nondelegation doctrine asa function of separation of powers limiting Congress in its delegationof power.39 While nominally recognizing the intelligible principle testas the proper test for deciding whether a statute satisfies the nondele-

33 DAVIS & PIERCE, supra note 29, § 2.6, at 72.34 Schechter, 295 U.S. at 551.35 See Wickard v. Filburn, 317 U.S. 111, 125 (1942) ("[E]ven if appellee's activity

be local ... it may still... be reached by Congress if it exerts a substantial economiceffect on interstate commerce,... irrespective of whether such effect is what might atsome earlier time have been defined as 'direct' or 'indirect.'").

36 See Schechter, 295 U.S. at 541-42 ("In view of the scope of that broad declara-tion, and of the nature of the few restrictions that are imposed, the discretion of thePresident ... is virtually unfettered.").

37 See, e.g., Fed. Power Comm'n v. New England Power Co., 415 U.S. 345, 352-53(1974) (Marshall, J., concurring) ("The notion that the Constitution narrowly con-fines the power of Congress to delegate authority to administrative agencies, whichwas briefly in vogue in the 1930's, has been virtually abandoned by the Court for allpractical purposes . . . ."); Steven F. Huefner, The Supreme Court's Avoidance of theNondelegation Doctrine in Clinton v. City of New York: More than "A Dime's Worth of

Difference, " 49 CATH. U. L. REX. 337, 337 (2000) ("In the ensuing six decades, thedoctrine has come to be seen as 'moribound' as a tool for enforcing a proper separa-tion of legislative and executive power. ....).

38 See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U.CHI. L. REv. 1721, 1722 (2002) (arguing that the nondelegation doctrine has neverexisted and that no support for the theory exists in the text, structure, or originalunderstanding of the Constitution).

39 See, e.g., Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 472-76 (2001) (up-holding the Clean Air Act's ambient air quality provisions); Skinner v. Mid-Am. Pipe-line Co., 490 U.S. 212, 218-19 (1989) (upholding the Federal Power Commission'sauthority to set pipeline fees); Mistretta v. United States, 488 U.S. 361, 371-72 (1989)

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gation doctrine, 40 the Court has failed to provide any guidance foridentifying an intelligible principle. Instead, the Court has focusedon whether the statute provided standards against which a courtwould measure the Executive's action.41 While standards like "in thepublic interest" provide some criterion against which a court couldmeasure executive action, it does not provide criterion as to what is, infact, "in the public interest," except perhaps by negative implication(for instance by looking at whether ,the Executive acted solely for theprivate benefit of an individual). That is not to say that such broadstandards necessarily offend the nondelegation doctrine, it is only tosay that recognizing them as intelligible principles is too charitable.

In Mistretta v. United States, the Court went so far as to recognizethat the nondelegation doctrine has become little more than a tool ofstatutory construction, employed to narrow delegations to avoid con-stitutional problems. 42 The Court added that its primary concern innondelegation cases, in particular, and separation of powers cases,generally, was preventing encroachment by one branch upon the pow-ers of another, and the resulting aggrandizement. 43 This general con-cern of separation of powers-encroachment and aggrandizement atthe expense of a coordinate branch of government-deals primarilywith institutional competence. In contrast, by asking solely whetherCongress provided a coordinate branch of government with enoughguidance in a statute, the intelligible principle test focuses on theamount of discretion granted one coordinate branch of governmentby another. If, in fact, the nondelegation doctrine is about separationof powers and separation of powers is about encroachment and ag-grandizement, the intelligible principle test is a poor measure ofwhether Congress has overstepped its authority to delegate some legis-lative power. This is so because the intelligible principle test has neverapproached the question of encroachment and aggrandizement be-cause it does not look at independent sources of power.

In truth, the canon of constitutional avoidance animates theCourt's nondelegation jurisprudence, not the fundamental principlesof institutional competence underlying other separation of powersproblems, such as bicameralism, presentment, and political questions.Rather than face the conflicting separation of powers principles of

(upholding the Federal Sentencing Guidelines as a permissible delegation of legisla-tive power).

40 Am. Trucking, 531 U.S. at 472; Skinner, 490 U.S. at 218-19; Mistretta, 488 U.S. at371-72.

41 Skinner, 490 U.S. at 218-19; Mistretta, 488 U.S. at 379.42 488 U.S. at 373 n.7.43 Id. at 382.

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due respect for coordinate branches of government 44 and adherenceto formal limitations on the powers of each branch,45 the courts avoidthe question by characterizing the entire nondelegation question asone of discretion through their reliance on the intelligible principletest.

No other separation of powers question is characterized in termsof discretion. For example, while judicially manageable standards-criterion against which courts may measure adherence to a statutoryor constitutional mandate-are an important separation of powersquestion with respect to the courts, 4 6 they do not measure the amountof discretion given to courts. Rather, judicially manageable standardsrecognize the institutional competence of courts to make certain deci-sions under Article III, which limits the courts' competence to resolv-ing cases and controversies. 47 These judicially manageable standardsrecognize the far more limited role of courts in lawmaking. They rec-ognize the courts' subordinate role in making policy decisions, a re-flection on the courts' institutional competence. Absence of ajudicially manageable standard may take a case or controversy out ofthe judicial power of the courts through the political question doc-trine, but this is because of limits on institutional competence not be-cause the issue confers too much discretion on the courts. Theinquiry in the case of judicially manageable standards focuses on thetype of question the courts are asked to resolve, not the range withinwhich the courts may resolve the question.

The reason for the Court's troubles in managing the nondelega-tion doctrine has been the intelligible principle test. The intelligibleprinciple test is based on the flawed assumption that separation ofpowers and nondelegation prohibit any lawmaking by the Executive.It distinguishes discretion in execution of the law from discretion increating the content of the law. 48 Not only is this a distinction withouta difference, 49 but it ignores the fundamental concern of separationof powers: institutional competence.

44 See Baker v. Carr, 369 U.S. 186, 217 (1962).45 See, e.g., INS v. Chadha, 462 U.S. 919, 957-58 (1983) ("To preserve [constitu-

tional checks on the legislative process], and maintain the separation of powers, the

carefully defined limits on the power of each Branch must not be eroded.").46 See Mistretta, 488 U.S. at 372-73 (quoting Am. Power & Light Co. v. SEC, 329

U.S. 90, 105 (1946)); Baker, 369 U.S. at 217.

47 U.S. CONST. art. III, § 2.48 See Field v. Clark, 143 U.S. 649, 693-94 (1982) (quoting Cincinnati, Wilming-

ton & Zanesville R.R. Co. v. Comm'rs of Clinton County, 1 Ohio St. 77, 88 (1852)).49 For example, section 10(b) of the Securities Exchange Act makes use of "any

manipulative or deceptive device or contrivance in contravention of such rules andregulations as the Commission may prescribe as necessary or appropriate in the pub-

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The intelligible principle test is also overly simplistic in definingpowers. While the Constitution vests all legislative power in the Con-gress 50 and all executive power in the President, 5 1 the Court has rec-ognized that some powers fall within a "twilight zone" of concurrentauthority.52 In areas of this concurrent authority, the Court has de-clined to invoke a general rule of nondelegation, 53 recognizing that insuch cases the President's power is at its height, embodying all of thepresidency's independent power plus all of the power Congress maydelegate in that area.54

The Court added to the confusion by completely ignoring theintelligible principle test and nondelegation doctrine in Clinton v. Cityof New York. 55 In Clinton, the Court invalidated the Line Item Veto Actof 199656 for failure to conform to the constitutional presentment andbicameralism mandates. 57 The dissent emphasized that the Act didnot actually allow the President to change the text of law, but merelyallowed the President to refrain from execution under certain circum-stances.5 8 In his dissent, Justice Breyer took the majority to task forfailure to uphold the Act under the nondelegation doctrine, particu-larly in light of equally broad standards found to satisfy the intelligibleprinciple test.59 Justice Scalia went further, stating that the Act's titlehad "faked out" the Court, leading it to invalidate the law when it wassubstantively no different than other grants of power the Court hadupheld in the past.60

lic interest" unlawful. Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b)(2000). This statute expressly instructs the Securities and Exchange Commission(SEC) to exercise its discretion in the execution of the law to determine the law'scontent. Clearly, by promulgating rules under this law, the SEC is executing the law,thus any discretion exercised is merely in the law's execution. On the other hand, thelaw's content is made by reference to the rules promulgated pursuant to the law itself.Thus, to execute the law, the SEC must effectively write the law. Where executionstops and creation begins proves to be a difficult question to answer.

50 U.S. CONsT. art. I, § 1.51 Id. art. II, § 1, cl. 1.

52 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,concurring).

53 See Loving v. United States, 517 U.S. 748, 772-73 (1996); United States v. Cur-tiss-Wright Exp. Corp., 299 U.S. 304, 322 (1936).

54 See Youngstown, 343 U.S. at 635-36.

55 524 U.S. 417 (1998).56 Pub. Law No. 104-130, 110 Stat. 1200.

57 Clinton, 524 U.S. at 448.

58 Id. at 474-75 (Breyer, J., dissenting).

59 Id. at 484-96.

60 Id. at 465-69 (Scalia, J., concurring in part and dissenting in part).

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Not only did the Court not address the nondelegation doctrine,but it went to great lengths to distinguish the Act from the facts ofField. The Court emphasized that Field involved no discretion on thepart of the President, and thus involved mere execution of the law.6 1

The Court also pointed out that Field did not involve a challengeunder the Presentment Clause. 62 While the Court effectively distin-guished the Act from Field, it failed to distinguish the Act from subse-quent nondelegation cases employing broad application of thenondelegation doctrine.

This was for good reason. On a purely technical level, the Courtcould not distinguish the vast discretion the Act gave the Presidentfrom prior nondelegation cases. Technically, the Act did not grantthe President the power to change the text of a bill, but instead gavethe President the power to prevent certain expenditures or tax bene-fits from having legal force and effect. 63 The Court would have hadgreat trouble distinguishing this discretion from the discretion to pre-vent duty-free treatment of certain goods from having prospectiveforce and effect, as in Field. Further, the Court would be hard pressedto distinguish the factors governing the President's exercise of thiscancellation power, such as that the cancellation would not "harm thenational interest, '64 from similarly broad discretion upheld under theintelligible principle test.

Despite these technical distinctions between the Act's cancella-tion power and a true line item veto, the Court correctly identified thetrue effect of the cancellation power: to alter the content of a dulyenacted law by refusing to give legal effect to its provisions. The Presi-dent simply lacks the institutional competence to make law out ofwhole cloth, to behave as a legislator by deciding when and on whatsubjects to legislate, in this case, by effectively repealing a properlyenacted law. The problem, as Justices Breyer and Scalia correctlypointed out, was that the Court could not rely on the nondelegationdoctrine to support its decision without holding that the standardsgoverning the exercise of the cancellation power failed the intelligibleprinciple test. The Court could not hold that the Act lacked an intelli-gible principle while remaining consistent with its earlierjurisprudence.

61 Id. at 443-44 (majority opinion).62 Id. at 444 n.36.63 Id. at 474-75 (Breyer, J., dissenting).64 Id. at 436 (majority opinion) (quoting the Line Item Veto Act of 1996, Pub. L.

No. 104-130, 110 Stat. 1200).

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The problem with relying on the Presentment and BicameralismClauses, however, is that the Court relied on formal constitutional re-quirements while at the same time ignoring the formal requirementsof the Act, which did not technically repeal a duly enacted law, even ifthat was the practical effect. As a result, the Court's decision was in-ternally inconsistent in its application of formalistic distinctions.While reaching the correct result, the Court was left grasping for anultimately unsatisfactory explanation for why it reached that result.

C. Finding the Nondelegation Doctrine in Separation of Powers Principles:Ancillary Powers as a Limiting Principle

In Clinton, the Court reached the correct result as a matter ofseparation of powers, but it could only do so by ignoring its entire lineof nondelegation doctrine jurisprudence. Effectively, the Court hadto choose between distinct lines of separation of powers jurisprudenceand its attempt to fit Clinton into the proper separation of powersmold. By dividing separation of powers into discrete doctrines, suchas nondelegation and bicameralism and presentment, and developingthe doctrines independently,6 5 the underlying principles of separationof powers become lost as the doctrines grow further apartjurisprudentially.

These underlying separation of powers principles are best articu-lated in the political question doctrine, itself a function of separationof powers66 : preventing aggrandizement of one branch at the expenseof another. 67 As far as judicial application of these principles, thisboils down to respect for coordinate branches of government, stan-dards against which to measure the conduct of one branch againstother branches, 68 and a recognition that the Constitution envisionsinteraction between the various branches, circumscribed by the Con-stitution taken as a whole. 69

Justice Jackson's now-famous formulation of executive power inYoungstown Sheet & Tube Co. v. Sawyer70 neatly embodies each of the

above principles, and has come to define how the Court evaluates the

65 Compare INS v. Chadha, 462 U.S. 919 (1983) (relying on the Bicameralism andPresentment Clauses to invalidate the legislative veto), with Mistretta v. United States,488 U.S. 361 (1989) (upholding delegation of the Federal Sentencing Guidelines tothe United States Sentencing Commission under the intelligible principle test).

66 See Baker v. Carr, 369 U.S. 186, 217 (1962).67 See Mistretta, 488 U.S. at 382.68 See id. at 380-81; Chadha, 462 U.S. at 944; Baker, 369 U.S. at 217.69 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jack-

son, J., concurring).70 Id. at 635-38.

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exercise of executive power. 71 Justice Jackson broke executive powerinto three categories: (1) circumstances involving express or impliedcongressional approval or assent; (2) circumstances involving congres-sional silence; and (3) circumstances involving express or impliedcongressional disapproval. 72 The first category is particularly useful indefining the contours of the nondelegation doctrine.

When Congress delegates power, it necessarily approves of thePresident's actions to act within the scope of the enactment. In suchcases, the President acts with the combined power of the Presidency'sinherent powers and all congressionally delegated power.73 Theseacts are given the greatest judicial deference and enjoy a strong pre-sumption of validity, fully supporting the separation of powers princi-ple of due respect. 74 Such due respect is not absolute. Thedelegation must satisfy the overarching concern of separation of pow-ers to prevent aggrandizement of one branch of government at theexpense of another in an area in which the first branch lacks indepen-dent institutional competence. Institutional competence then focuseson the type of discretion involved: whether Congress has told anotherbranch of government to fulfill a legislative mandate by exercisingthat branch's institutional competence or whether Congress has ex-panded the institutional competence of another branch wholly apartfrom that branch's constitutional mandate.

While the intelligible principle test ostensibly serves this pur-pose,75 it fails to recognize the full breadth of the Youngstown test.The intelligible principle test casts the entire question in terms of thescope of discretion associated with fulfilling a congressional mandatewithout accounting for the full amount of independent institutionalcompetence or range of discretion. In cases of express congressionalapproval, the President acts not only under delegated legislative au-thority, but under independent executive authority, such as thatfound in the Vesting Clause 76 or the Take Care Clause. 7 7 These ex-press bases of executive authority may be further augmented by aninherent executive power in certain areas, such as foreign relations.The President's conduct, then, is not defined solely by Congress'spower to delegate, but the combination of the President's indepen-dent authority and Congress's delegation power.

71 See Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981).72 Youngstown, 343 U.S. at 635-38 (Jackson, J., concurring).73 Id. at 635-36.74 Id. at 637.75 See Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 218-19 (1989).76 U.S. CONST. art. II, § 1, cl. 1.77 Id. art. II, § 3.

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The intelligible principle test does not recognize these separatebases of executive authority. Instead, the intelligible principle test,recognizing that Congress cannot delegate purely legislative power,78

attempts to define the nondelegation doctrine solely along this restric-tion on congressional power. Seeking to reconcile realities of execu-tive practice with the prohibition against delegation absent anintelligible principle, the Court has reduced an intelligible principleto no more than a general policy statement, assigned to a particularagency, with some sort of boundaries on the action. 79 In doing so,however, the Court has virtually eliminated the nondelegation doc-trine as a tool for enforcing separation of executive and legislativepower.

8 0

As the sole test for nondelegation, the intelligible principle testadvances the fiction that administrative rulemaking is not an exerciseof legislative power when it does not involve too much discretion.This is not the inevitable result of the modern administrative state orsimply judicial recognition of practical realities. This result flows fromthe failure of the Court to follow its own articulation of proper separa-tion of powers principles.

While it is true that Congress cannot delegate purely legislativepower, a true delegation of legislative power means a full transfer oflegislative power by creating legislators.8 1 Such delegation only existswhen nothing constrains the Executive's discretion,8 2 when Congressgrants the Executive a power to act in a manner wholly divorced fromthe Executive's independent institutional competencies. The intelligi-ble principle test confuses this by implying that there must be greaterprecision in congressional delegation than separation of powers prin-ciples require by focusing solely on the scope (or amount) of discre-tion found in the delegating legislation without accounting forindependent sources of authority (the type of discretion). By focusingon institutional competence, a complete separation of powers analysisacknowledges that the type of discretion exercised, not the scope ofdiscretion, controls the proper exercise of power. The full scope ofdiscretion encompasses the sum of delegated authority to act within agiven field (such as the power to execute laws or decide a case or

78 SeeJ. W. Hampton,Jr., & Co. v. United States, 276 U.S. 394, 407-09 (1928).79 See Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (quoting Am. Power

& Light Co. v. SEC, 329 U.S. 90, 105 (1946)).80 See Huefner, supra note 37, at 337-38.81 See Mistretta, 488 U.S. at 419-20 (Scalia, J., dissenting) (quoting JOHN LocKE,

SECOND TREATISE OF GOVERNMENT 87 (R. Cox ed., Harlan-Davidson 1982) (1690));Posner & Vermeule, supra note 38, at 1726-28.

82 See Mistretta, 488 U.S. at 419 (Scalia, J., dissenting).

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controversy) plus any other independent competencies related to thatfield which do not require specific authorization before they may beexercised (such as that of the commander in chief or the courts' su-pervisory power). The inquiry then becomes: what sort of power hasCongress instructed a coordinate branch of government to exercise inthe first instance?

Rather than recognizing an independent basis for greater execu-tive discretion, the intelligible principle test permits such broad dis-cretion, but only through the fiction that Congress has providedadequate guidance through standards like "in the public interest." Byembracing this fiction and declining to trace the contours of the intel-ligible principle test, the courts have put themselves in the position ofchoosing between finding any delegation satisfies the test or contra-dicting more than a century of nondelegation jurisprudence, not tomention running afoul of separation of powers principles themselvesby failing to afford due respect to a coordinate branch of government.The courts have simply left themselves with no principled alternative.As a result, the intelligible principle test has swallowed the nondelega-tion doctrine, rendering it virtually nonexistent. 83

The controlling question in a proper nondelegation analysis isnot the precision of congressional delegation (whether Congress hasenunciated an intelligible principle), but whether that delegation is anaked delegation of legislative power, unsupported by an indepen-dent executive power outside of the "faithful" execution of law.8 4 Jus-

tice Scalia recognized this in his dissenting opinion in Mistretta v.United States.85 The correct test, the ancillary powers test, looks not atwhether Congress has delegated any legislative power or provided anintelligible principle to guide executive discretion, but whether Con-gress has called on the Executive to exercise an express or inherentexecutive power in connection with the delegated legislative power. 86

So long as the exercise of legislative power is ancillary to the exerciseof an independent executive power, as opposed to a naked delegationof legislative power, the ancillary powers test is satisfied.

Although, in practice, the ancillary powers test would supportmany of the broad delegations upheld under the intelligible principletest, the larger effect would be to breathe new life into the nondelega-

83 See Huefner, supra note 37, at 337-38.84 In a strict sense, the Take Care Clause, U.S. CONST. art. II, § 3, cl. 4, does not

grant the President the power to execute laws, but places a specific duty on how thePresident should exercise the executive power granted generally by the VestingClause, id. § 1, cl. 1.

85 488 U.S. at 419-21 (Scalia, J., dissenting).86 See id. at 420-21.

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tion doctrine. Because the intelligible principle test has beenstretched so thin, it cannot be principally applied without overrulingor contradicting every case finding standards such as "in the publicinterest" satisfied the test. Under the ancillary powers test, however,the courts could once again look to the nondelegation doctrine as ameaningful separation of powers limit and avoid strained applicationof other separation of powers limits, such as the use of bicameralismand presentment in Clinton, while ignoring the proverbial elephant inthe middle of the room.

The ancillary powers test involves three steps. First, the court askswhether legislative power had been delegated. Statutes, such as theone involved in Field, with a complete absence of discretion in execu-tion (where the Executive is a "mere agent" of Congress) would stillfall within the test. Other statutes, those presented in purposiveterms-those which describe a general policy goal, such as the LineItem Veto Act-which clearly delegate legislative power must proceedto the second step.

Next, the court must look at whether the law involves the exerciseof an independent executive power. While no mathematical testcould answer this question, the primary inquiry focuses on whetherand under what circumstances the Executive must or may act. Absentan independent source of executive power beyond the Vesting orTake Care Clauses (institutional competence), an act crosses the linebetween permissible and impermissible delegation when it grants theExecutive the type of discretion reserved to the legislature: the discre-tion to govern a particular area or not, to make law, in the first in-stance. Discretion in this sense, the separation of powers sense, is noton the quantity of discretion, which the intelligible principle test ex-amines, but the quality of the discretion, the sort of discretion within agiven branch's institutional competence. These powers are in turnfound in the Constitution itself and include powers inherent to thatbranch of government.

Although the quality of the discretion may affect the quantity ofdiscretion which Congress may instruct another branch to execute,quantity is not the concern of separation of powers, which askswhether one branch has aggrandized itself at the expense of an-other-a qualitative question. When one branch acts within the scopeof its institutional competence, it has not aggrandized itself but exer-cised its own power. On the other hand, when one branch exercisesthe powers of another, outside its own institutional competence andindependent of the exercise of one of its own institutional competen-cies, then it has aggrandized itself at the expense of another.

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The Line Item Veto Act failed this step of the ancillary powers testbecause it gave the President complete discretion to act or refrainfrom acting and gave no direction as to what sorts of appropriationsor limited tax benefits should be cancelled. This sort of discretion islegislative discretion in the true sense. It aggrandized the Executive atthe expense of Congress because it both took the power to make thesedecisions (to act or not to act) from Congress and effectively left Con-gress without any means to check the Executive, as the Presidentcould simply veto any act which tried to void the cancelled appropria-tion or limited tax benefit.

In the final step of the ancillary powers test, if the court finds noindependent executive power, the law must satisfy the bicameralismand presentment requirements of Chadha to prevent unilateral actionby participants in the lawmaking process. The Line Item Veto Actwould fail this test, not because the cancellation changed the text of alaw, as the Court held,8 7 but because the cancellation itself amountedto a separate legislative act repealing a duly enacted law88 and aggran-dized the Presidency at the expense of Congress. It is no argumentthat Congress may not care about the aggrandizement. Among Con-gress's enumerated powers one cannot find the power to create a sec-ond national legislature in the person of the President.

Because it is founded in broader separation of powers principles,the ancillary powers test is not limited to legislative-to-executive dele-gation but includes legislative-to-judiciary delegation. While the exactcontours of inherent executive power may be undefined, 9 the federalJudiciary's inherent power is limited to its supervisory power, which isitself derived from its express Article III power to decide cases or con-troversies. 90 It is for this reason that the otherwise unlimited grant ofauthority to develop rules of privilege found in Rule 501 of the Fed-eral Rules of Evidence, as enacted by Congress, 91 does not offend that

87 Clinton v. City of New York, 524 U.S. 417, 439 (1998).88 Id. at 438 (quoting INS v. Chadha, 462 U.S. 919, 954 (1983)).89 See, e.g., Myers v. United States, 272 U.S. 52, 118 (1926) ("The executive power

was given in general terms, strengthened by specific terms where emphasis was re-garded as appropriate, and was limited by direct expressions where limitation wasneeded .... ).

90 See Bank of N.S. v. United States, 487 U.S. 250, 254 (1988) ("In the exercise ofits supervisory authority, a federal court 'may, within limits, formulate proceduralrules not specifically required by the Constitution or the Congress.'" (quoting UnitedStates v. Hasting, 461 U.S. 499, 505 (1983))). While the exact limits of the supervisorypower may be disputed, this inherent power is clearly limited to a court's power tomanage its own proceedings or those of inferior courts. See 1 LAURENCE H. TRIBE,AMERICAN CONSTITUTIONAL LAW § 3-23, at 466 n.2 (3d ed. 2000).

91 Pub. L. No. 93-595, 88 Stat. 1926 (1975).

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ancillary powers test. While developing rules of privilege, or any otherrule of procedure or evidence, would otherwise fall outside of thestrict case or controversy power, they survive the ancillary powers anal-ysis because the delegation is coupled with an independent source ofjudicial power: the supervisory power to manage rules of evidence andprocedure.

To this point, it may not seem that the ancillary powers test addsmuch to the intelligible principle test as far as outcomes. Part II, how-ever, demonstrates why the ancillary powers test does more than sim-ply recast the same results by looking at two similar thoughfundamentally different statutes involving international trade: sections20192 and 30193 of the Trade Act of 1974. 94

II. THE INTELLIGIBLE PRINCIPLE TEST IN ACTION: FOREIGN TRADE

International trade provides a convenient frame of analysis forthe ancillary powers test. It involves both the power of Congress toregulate foreign trade and, in some instances, it implicates the Presi-dent's foreign relations power. Sections 201 and 301 of the Trade Actof 1974 illustrate this well. While section 201 does not implicate for-eign relations and was actually intended to be insulated from foreignpolicy considerations entirely,95 section 301 directly implicates foreignrelations as it requires the United State Trade Representative (USTR)to evaluate whether other nations are fulfilling their obligations underinternational agreements or otherwise unjustifiably burdening UnitedStates trade through their official acts. 96 This distinction will proveimportant for purposes of the ancillary powers analysis, as the formerinvokes no recognized independent executive power,9 7 while the lat-ter directly implicates the President's plenary and exclusive foreignrelations power.98

92 19 U.S.C. §§ 2251-2254 (2000). For purposes of this Note, "section 201" refersto sections 201 through 204 of the Trade Act of 1974.

93 Id. §§ 2411-2420 (2000). For purposes of this Note, "section 301" refers tosections 301 through 310 of the Trade Act of 1974.

94 Pub. L. No. 93-618, 88 Stat. 1978 (1975) (codified as amended at 19 U.S.C.§§ 2101-2495).

95 S. REP. No. 93-1298, at 124 (1974), as reprinted in 1974 U.S.C.C.A.N. 7186,7268.

96 19 U.S.C. § 2411(a).97 Indeed, the Court has recognized that Congress has plenary power to regulate

international commerce. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824).98 See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319-20 (1936)

(describing the President's international relations authority as plenary and exclusive).

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This Part begins by outlining the provisions of sections 201 and301 to provide the proper framework for the ancillary powers analy-sis.99 It concludes by applying the ancillary powers test to sections 201and 301 to illustrate its application and demonstrate how the ancillarypowers test provides both deference to the political branches whilepreserving the nondelegation doctrine.100

A. The Statutes

1. Section 201: Relief for Domestic Industries

Section 201 empowers the President to impose quantitative re-strictions, tariffs, or tariff-rate quotas on imports to facilitate positiveadjustment by an industry injured by increased imports. 10 1 The Presi-dent may do so only after the International Trade Commission("ITC") determines that the increased imports have been a substantialcause of serious injury or threatened serious injury to the industry. 10 2

While section 201 requires the President to take all "appropriate andfeasible action within his power" to facilitate positive adjustment, thisrequirement is virtually eviscerated by a qualification allowing thePresident to engage in a cost-benefit analysis and a subjective determi-nation of feasibility.' 03 Section 201 lists a number of factors the Presi-dent must take into account when determining feasibility, but thesefactors include such amorphous terms as "factors related to the na-tional economic interest of the United States."10 4 Any restraints thesefactors place on the President's discretion, in terms of when to act,have-been all but eliminated by the courts. 10 5

While the ITC's finding of serious injury is a condition precedentto the President's action, the ITC must initiate an investigation at therequest of the President. 10 6 Even though the ITC must initiate investi-gation under certain other circumstances, 10 7 the fact remains that the

99 See infra Part II.A.100 See infra Part II.B.101 19 U.S.C. § 2253(a).102 Id.103 Id. § 2253(a)(1).104 Id. § 2253(a) (2) (F).105 See Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985)

("'[T] he President's findings of fact and motivations for his actions are not subject toreview."' (quoting Florsheim Shoe Co. v. United States, 744 F.2d 787, 795 (Fed. Cir.1984))).106 19 U.S.C. § 2252(b).107 The ITC must also initiate an investigation at the request of the USTR, upon

receipt of a petition from an entity representing the industry (e.g., trade associations,labor unions, groups of workers), at the request of the House of Representatives Ways

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President may initiate an investigation at the President's completediscretion.

The ITC must determine whether increased imports have injuredor threatened injury to the industry and, in the usual and simplestcase, issue the determination within 120 days.108 To find injury, theITC must find that an article is

1. being imported in such increased quantities as to

2. constitute a substantial cause of

3. serious injury or threat of serious injury to a domestic industry4. producing a like or directly competitive article. 10 9

Section 201 defines "substantial cause" as "a cause which is impor-tant and not less than any other cause," 110 and "serious injury" as "asignificant overall impairment in the position of a domestic indus-try."11 In identifying serious injury, section 201 directs the ITC toconsider such factors as the significant idling of productive facilities,the inability of a significant number of domestic firms to carry on pro-duction at a reasonable level of profit, and significant unemploymentor underemployment in the industry. 112 While section 201 does notdefine "like or directly competitive" articles, the committee report ac-companying the Trade Act explained that these terms meant articleswhich are either "substantially identical in inherent or intrinsic char-acteristics" (like) or "substantially equivalent for commercial pur-poses" (directly competitive) .113

After finding injury, the ITC must recommend the action it be-lieves will address the serious injury (or threat of serious injury) 'tndbe most effective in facilitating positive adjustment.1 14 The ITC thenpresents its determination and recommendations (if it found injury)to the President.1 1 5 If the ITC is equally divided over whether there

and Means Committee or the Senate Finance Committee, or upon its own motion.Id.108 Id. The ITC has an additional sixty days when the petitioner requests provi-

sional relief, and an additional thirty days if the commission determines that the in-vestigation is "extraordinarily complicated." Id.

109 Id.110 Id. § 2252(b)(1)(B).

111 Id. § 2252(c).112 Id.

113 S. REP. No. 93-1298, at 121-22 (1974), as reprinted in 1974 U.S.C.C.A.N. 7186,7265-66.114 19 U.S.C. § 2252(e).

115 Id. § 2252(f).

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has been an injury, the President may consider the ITC to have deter-mined that the industry suffered injury. 116

The courts afford the ITC's determination almost complete def-erence. 117 The courts limit their review to "clear misconstruction ofthe governing statute, a significant procedural violation, or actionoutside [the] delegated authority," leaving the ITC's motivations andfindings of fact entirely unreviewable."18

Once the President receives a determination of injury, the Presi-dent must take "all appropriate and feasible action within his powerwhich the President determines will facilitate efforts by the domesticindustry to make a positive adjustment to import competition."1'1 9

While phrased in compulsory terms, this language is devoid of con-tent. The President's determination under section 201 is subject tothe President's absolute, unreviewable discretion. 120 Because thecourts have precluded themselves from examining the Executive's de-cision, "all appropriate and feasible action within his power" meansanything the President wishes.

Section 201 makes a perfunctory effort to guide the President'sdecisionmaking process, "requiring" the President to consider suchfactors as the ITC's recommendations and "factors related to the na-tional economic interest," such as the social and economic costs oncommunities if relief is denied and the impact on consumers and do-mestic competition if relief is granted. 12 1 None of these considera-tions are given any decisive, much less conclusive, weight. Combinedwith the sheer breadth of these considerations, the lack of any conclu-sive factors and absence of judicial review grants the President abso-lute, unfettered authority to grant or deny relief.

This discretion extends with equal force to the form of relief pro-vided. Section 201 allows the President to choose between nine dis-tinct forms of relief, including tariffs, quotas, tariff-rate quotas, and"any other action which may be taken by the President under author-ity of law and which the President considers appropriate and feasible,"as well as any combination of these forms of relief.' 22 Although sec-tion 201 places certain limits on the nature of the relief, these limitsoperate primarily as outer limits on the duration and quantity of re-

116 19 U.S.C.A. § 1330(d)(1) (West 1999 & Supp. 2005).117 See Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. Cir. 1985).118 Id.

119 19 U.S.C. § 2253(a) (1) (A).120 See Maple Leaf 762 F.2d at 89.

121 19 U.S.C. § 2253(a).122 Id.

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lief.123 Despite these limits, the same criteria for finding injury guidethe President's selection of type, quantity, and duration of relief.1 24

They provide no limitation on the actual quality or character of therelief granted. In fact, in the forty-one times the ITC has found in-jury, 1 25 the President has only followed the ITC's recommendationwithout deviation twice. 126 Although Congress retains some oversightwhen the President deviates from the ITC's recommendation, 12 7 Con-gress has little power to change the outcome.' 28

123 For example, any tariff cannot increase the existing duty by fifty percent, advalorem (e.g., if the existing duty is twenty-five percent, the total duty cannot exceedseventy-five percent ad valorem after the President imposes a new tariff under section201). Id. § 2253(e). Quantitative restrictions must allow, at a minimum, an amount ofthe article equal to the quantity or value imported in the most recent three yearswhich are "representative of imports of such article" unless the President finds a dif-ferent quantity or value is justified to "prevent or remedy the serious injury." Id. Ad-ditionally, the relief is limited to four years, though the President may extend therelief under certain circumstances. Id.

124 Id. § 2253(a).125 See Steel, USITC Pub. 3479, Inv. No. TA-201-73 (Dec. 2001); Circular Welded

Quality Line Pipe, USITC Pub. 3261, Inv. No. TA-201-70 (Dec. 1999); Steel Wire Rod,USITC Pub. 3207, Inv. No. TA-201-69 (July 1999); Lamb Meat, USITC Pub. 3176, Inv.No. TA-201-68 (Apr. 1999); Views of the Commission on Injury, USITC Pub. 3088,Inv. No. TA-201-67 (Mar. 1998); Broom Corn Brooms, USITC Pub. 2984, Inv. No. TA-201-65 (Aug. 1996); Extruded Rubber Thread, USITC Pub. 2563, Inv. No. TA-201-63(Dec. 1992); Christopher W. Derrick, Note, The Evolution of the Escape Clause: The

United States' Quest for Effective Relief from Fairly Traded Imports, 13 N.C. J. INT'L L. &COM. REG. 347, 365-71 (1988). This includes six cases in which the ITC was equallydivided over the question of injury. See Steel Wire Rod, supra; Extruded RubberThread, supra; Derrick, supra, at 365-71.

126 See Proclamation No. 7529, 67 Fed. Reg. 10,553 (Mar. 5, 2002) (providing re-lief for certain steel products); Proclamation No. 7274, 65 Fed. Reg. 9193 (Feb. 18,

2000) (providing relief for certain circular welded carbon quality line pipe); Procla-mation No. 7273, 65 Fed. Reg. 8621 (Feb. 16, 2000) (providing relief for certain steel

wire rod); Proclamation No. 7214, 64 Fed. Reg. 42,265 (July 30, 1999) (providingrelief for lamb meat); Proclamation No. 7130, 63 Fed. Reg. 30,359 (May 30, 1998)(providing relief for wheat gluten); Proclamation No. 6961, 61 Fed. Reg. 64,431 (Nov.28, 1996) (providing relief for broom corn brooms); Derrick, supra note 125, at365-71. This figure does not include cases in which the ITC was equally divided onthe question of injury and the President took no action.

127 See, e.g., 19 U.S.C. § 2253(b) (requiring the President to explain any deviationfrom the ITC's recommendation or decision to take no action).

128 Section 2253(c) of Title 19 allows Congress to overrule the President's action ifit differs from the ITC's recommendation or if the President declines to take actionby passing a joint resolution. Of course, the President may veto the joint resolution,which means that Congress must gather a two-thirds majority for anyjoint resolution.Section 203 of the Trade Act, 19 U.S.C. § 2253, originally allowed for a two-houselegislative veto. However, after the Supreme Court struck down the legislative veto inINS v. Chadha, 462 U.S. 919 (1983), Congress amended section 203 to remedy this

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2. Section 301: Enforcement of United States Rights UnderInternational Agreements

Section 301 of the Trade Act compliments section 201 by ensur-ing that United States commerce receives the full benefit of interna-tional agreements. Unlike section 201, section 301 focuses on the actsof other nations. Actions taken under section 301 may be divided intotwo categories: mandatory129 and discretionary. 130 This distinction fo-cuses on when the USTR may or must act, not on how the USTR mayact.131

Under section 301, the USTR initiates an investigation into thetrade practices of another country upon petition by "any interestedparty," 13 2 upon the USTR's own motion, or if the USTR identifies thecountry as a "priority country. ' 13 3 The USTR is not required to initi-ate an investigation in any of these circumstances, though when theUSTR determines not to initiate an investigation after receiving a peti-tion, the USTR must make a formal determination, including the rea-sons for the determination, and publish that determination in theFederal Register. 134 Additionally, the USTR may only decline to initi-ate an investigation into a "priority country" when the USTR deter-mines such an investigation would be "detrimental to United Stateseconomic interests."' 3 5

After initiating the investigation, the USTR will look into whether

1. the rights of the United States under any trade agreement arebeing denied; 13 6 or

2. an act, policy, or practice of a foreign country violates, is inconsis-tent with, or denies benefits under any trade agreement to whichthe United States is a party or is an unjustified burden or restrictionon United States commerce; or' 37

3. "an act, policy, or practice of a foreign country is unreasonable ordiscriminatory and burdens or restricts United States commerce,"and action is appropriate.1 38

defect. See William E. Perry, Administration of Import Trade Laws by the United States Inter-national Trade Commission, 3 B.U. INT'L L.J. 345, 375 n.138 (1985).129 19 U.S.C. § 2411(a).130 Id. § 2411(b).131 Id. § 2411(c).132 Id. § 2412(a).133 Id. § 2412(b).134 Id. § 2412(a) (3).135 Id. § 2412(b) (2) (B).136 Id. § 2411(a).137 Id.138 Id. § 2411(b).

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If the USTR makes either of the first two findings, this triggerssection 301's "mandatory action" provisions. The third finding trig-gers section 301's "discretionary action" provisions. In either case, theUSTR's actions are subject to the President's specific direction. 139 Incase of the mandatory action, the USTR has additional discretion toact if the USTR makes certain specific findings, including a findingthat the action would have a disproportionate adverse impact on theUnited States economy or seriously harm national security interests.1 40

Regardless of whether the USTR's findings result in mandatoryor discretionary action, the USTR has discretion to determine the ex-act action to take. For both mandatory and discretionary action, theUSTR has the same range of discretion.14' These actions include sus-pending trade benefits under international agreements, imposing du-ties or other import restrictions, and negotiating agreements with theforeign country to eliminate the act or policy, eliminate the burdencreated by the act or policy, or provide the United States with a com-pensatory benefit.142 Unlike section 201, section 301 does not restrictthe magnitude or duration of the USTR's action, and, because section301 subjects the USTR to the specific direction of the President, byextension places no such limits on the President's actions.

B. The Ancillary Powers Test Applied

On the surface there would not appear to be any difference inthe amount of discretion provided under sections 201 and 301, bothin terms of how or when to act. In both cases, the Executive has al-most unlimited authority to initiate an investigation. In both cases,the Executive has virtually unlimited discretion when making the find-ings necessary to take action. In both cases, the Executive has virtuallyunlimited discretion when it chooses to act. Under the intelligibleprinciple test, it would seem that if one were to fail, both should fail.However, as demonstrated below, by breaking from the intelligibleprinciple test's sole focus on the scope of discretion, and looking in-stead at the quality or type of discretion within the larger frameworkof independent executive power, the ancillary powers test provides ameasurable improvement over the intelligible principle test.

Sections 201 and 301 both involve one source of federal power:the power of Congress to regulate foreign commerce. 143 If that were

139 Id. § 2411(a), (b).140 Id. § 2411(a) (2) (B).141 Id. § 2411(c) (1).142 Id.143 U.S. CONST. art I. § 8, ci. 3.

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the only source of federal power involved, then the outcome underthe ancillary powers test would come out no differently. Section 301,however, involves a second source of federal power: the President'sforeign relations power. 144 In such cases, the President acts under thecombined authority of a plenary executive power as "the sole organ ofthe federal government in ... international relations" 145 and pursuantto Congress's plenary power to regulate international commerce, 146

personifying federal sovereignty and embodying the whole of federalpower.1 47 If the President lacks the authority in such a case then, it isbecause the federal government itself lacks the power.

While all foreign trade may in some way affect foreign relations,section 201's legislative history clearly shows that Congress intendedthat section 201 relief would be isolated from foreign policy con-cerns. 148 Thus, when the President acts under section 201, the Presi-dent acts solely under the President's power to take care that the lawsof the United States be faithfully executed. 149 Section 201 is the prod-uct of Congress's plenary power to regulate international trade. 150

When the President acts under section 201, the President acts solelypursuant to delegated authority, and Congress, through its expressedintent,1 5 1 has specifically placed this delegated authority outside of thePresident's foreign affairs power.

Even if Congress had not specifically placed section 201 outsidethe President's foreign relations power, it fails to invoke the power byits own terms. Section 201 does not look at the actions of foreignstates. Determination of injury is based solely on finding such in-creased imports of like or directly competitive articles as to substan-tially cause serious injury or threat thereof to domestic industry. 152

These factors are solely domestic and bear no relation to conditions inforeign countries or the actions of foreign governments. The driving

144 See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319-20 (1936)(describing the President's international relations authority as plenary and exclusive).145 Id. at 320.146 See Gibbons v. Ogden, 22 U.S. 1, 197 (1824).147 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952)

(Jackson, J., concurring).148 S. REP. No. 93-1298, at 124 (1974), as reprinted in 1974 U.S.C.C.A.N. 7186,

7268.149 U.S. CONST. art. II, § 3.

150 Id. art. 1, § 8, cl. 3.

151 S. REP. No. 93-1298, at 124, as reprinted in 1974 U.S.C.C.A.N. 7186, 7268.152 19 U.S.C. § 2252(b) (2000).

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purpose of section 201 is to provide relief against fairly traded goods;no evidence of unfair trade practices is required for relief.153

Section 201 fails the ancillary powers test. It clearly involves theexercise of legislative power which is not ancillary to an independentexecutive power, and relief granted pursuant to section 201 fails tosatisfy the Bicameralism and Presentment Clauses, as well as the Origi-nation Clause. 154

As discussed above, the President has virtually unfettered discre-tion both when deciding whether to provide relief and what sort ofrelief to provide.1 55 In such cases, the President acts as a legislator inthe true sense of the word. Under section 201, the President decidesto regulate in the first instance (when) and the nature of the regula-tion (how). The lack of governing guiding principles and conflictingstandards not only fail to establish an identifiable congressional pol-icy, but fail to establish criterion against which to measure the Presi-dent's actions.

While these actions are clearly legislative, the ancillary powers testrequires further evaluation for independent executive authority. Al-though tariffs and quotas necessarily implicate foreign relations tosome degree, such implication is not within the scope of the Presi-dent's independent foreign relations powers. As discussed above, sec-tion 201 is grounded in Congress's power to regulate internationalcommerce and does not implicate the President's power as the na-tion's sole organ for international relations, namely the power tospeak and listen on behalf of the nation. 156 In that case, the only in-dependent executive powers available are the Vesting and Take CareClauses.' 57

Section 201 clearly involves execution at the ITC level. Once aproper request is made for the ITC to conduct an investigation, itmust act.158 The ancillary power test overcomes any lack of guidancein terms of recommending relief because the recommendation is an-cillary to the execution of the report. The President, on the otherhand, has complete discretion, both in terms of granting relief anddefining the remedy. 59 There is no independent executive authorityaccompanying this absolute discretion which would provide an ancil-

153 See Kevin C. Kennedy, Presidential Authority Under Section 337, Section 301 and theEscape Clause: The Case for Less Discretion, 20 CORNELL INT'L L.J. 127, 128 (1987).

154 U.S. CONST. art. I, § 7, cl. 1.155 See supra Part II.A.1.156 See supra notes 144-51 and accompanying text.157 U.S. CONST. art. II, § 1, cl. 1; id. § 3.158 19 U.S.C. § 2252(b) (2000).159 See supra notes 119-28 and accompanying text.

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lary power. For this reason, the President's role under section 201fails the ancillary powers test.

Lastly, since section 201 does not depend on any action fromCongress and has the effect of enacting a tariff, quota, tariff-ratequota, or any combination thereof, 60 it has the effect of enacting alaw. Because the relief and remedy are at the President's sole discre-tion, section 201 does not protect against individual participants inthe lawmaking process from enacting statutes unilaterally.' 61 As a re-sult, relief in the form of tariffs, quotas, or tariff-rate quotas fail tosatisfy the checks guaranteed under the Presentment and Bicamera-lism Clauses. Relief in the form of tariffs and tariff-rate quotas also failto satisfy the Origination Clause, 162 since they do not even requireapproval by the House of Representatives, let alone originate in it.The Origination Clause itself serves an important, additional separa-tion of powers function by ensuring not only that revenue measuressatisfy bicameralism and presentment, but that they originate in the"people's House." Absent any ancillary, independent executivepower, section 201 must fail the ancillary powers test.

Section 301, on the other hand, survives the ancillary powers test,despite its similar grant of power, because it does involve an ancillaryexecutive power: the President's foreign relations power. The presi-dency derives its plenary power in international relations from its posi-tion as the sole representative of the United States' externalsovereignty, and exclusive power to speak or listen on behalf of thenation. 163 Unlike Congress's power to regulate interstate commerce,this power is not derived from the Constitution, but from the Unionitself as the sovereign successor to the British Crown. 164 Federalpower to regulate international commerce, on the other hand, is de-rived from the Constitution's enumerated powers. 165 The Constitu-tion vests the absolute and plenary power to regulate internationalcommerce in Congress alone. 1 66

When the President acts under section 301 through the USTR,the President acts both under the Vesting and Take Care Clauses andunder the President's independent foreign relations power. The Pres-ident is then acting both as Congress's agent in executing its foreigncommerce policy and as an independent operator exercising the Pres-

160 19 U.S.C, § 2253(a).161 Clinton v. City of New York, 524 U.S. 417, 427 n.12 (1998).162 U.S. CONST. art I, § 7, cl. 1.163 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 317-20 (1936).164 Id. at 316-17.165 U.S. CONST. art. I, § 8, cl. 3.166 Gibbons v. Ogden, 22 U.S. 1, 197 (1824).

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ident's own foreign relations power. In essence, Congress gave thePresident another "arrow" in the President's foreign relations quiver.Section 201 relief, on the other hand, looks solely at domestic con-cerns, and was clearly intended to be so limited. 167

CONCLUSION

While the Constitution certainly contemplates integration of thepowers of the separate branches of government, it also diffuses themto protect liberty. 168 Separation of powers, though not indifferent toefficiency, aims to protect against the arbitrary exercise of power; 169

the sort of exercise invited by wholesale delegation of power from onebranch to another. Where that delegation is accompanied by inde-pendent sources of power, however, the risk of arbitrary exercise ofpower is lessened, or is at least less troubling, as the power exercisedfalls within the branch's institutional capacity-its constitutionally de-fined sphere of power.

Unfortunately, the intelligible principle test, with its focus on thequantity of discretion delegated rather than the nature of such discre-tion, fails to properly account for the improper delegation of power.By failing to incorporate broader separation of powers principles, theintelligible principle test lost sight of the fundamental concern withpreventing arbitrary exercises of power. The intelligible principletest, as it developed, forces courts to either accept limitless delegationor violate separation of powers decisions itself by failing to affordproper deference to coordinate branches of government.

The Court may revive the nondelegation by uniting its separationof powers jurisprudence in the ancillary powers test. By adopting theancillary powers test, the Court would prevent wholesale delegation ofpower while still allowing the integration of powers into a workablegovernment. At the same time, the ancillary powers test advancesother separation of powers concerns, such as judicially manageablestandards against which to measure executive action and respect forcoordinate branches of government. Lastly, the ancillary powers testserves the public by shielding against arbitrary exercise of power.

As the discussion of sections 201 and 301 of the Trade Act of 1974illustrates, the ancillary powers test is more than simply a restatement

167 S. REP. No. 93-1298, at 124 (1974), as reprinted in 1974 U.S.C.C.A.N. 7186,7268.168 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson,J.,

concurring).169 Id. at 613 (Frankfurter, J., concurring) (quoting Myers v. United States, 272

U.S. 52, 293 (1926) (Brandeis, J., dissenting)).

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of the intelligible principle test. It provides for maximum deferencewhile at the same time allowing for real limits to Congress's ability todelegate power.

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