Robert Jackson's Non-Delegation Doctrine

Abstract

This brief Essay explores Robert Jackson's theory of the non-delegation doctrine, which was first articulated in a brief that he filed as Solicitor General in Currin v. Wallace. The Supreme Court decided Currin without addressing Jackson’s theory and his brief was forgotten. But the Currin brief deserves renewed attention both for its reasoning and for its conclusions on non-delegation. First, Jackson argued that there are no internal limits on Congress’s discretion to delegate authority to executive agencies. Second, he thought that there were such limits on Congress’s discretion to delegate authority to the President himself. The first point confirms, albeit in Jackson’s inimitable prose style, the legal consensus since 1935. His second point, though, would transform separation-of-powers law by extending constitutional limits to the authority that Congress may confer on the President for domestic affairs. Jackson’s brief in Currin also clarifies his concurrence in Youngstown Sheet and Tube Co. v. Sawyer. n setting forth the first of his three categories for judging the legality of a presidential act, Justice Jackson explained: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at his maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This statement can be read to mean that a presidential action based on a congressional authorization is invalid only if the act is beyond the reach of the federal government. But that reading is wrong. Jackson qualified the phrase “all that Congress can delegate” with a footnote stating that executive action could be invalid because Congress cannot delegate authority to the President. Any ambiguities on that score are resolved by reading the concurrence in conjunction with the Currin brief, where Solicitor General Jackson claimed that congressional delegations to the President could be unconstitutional. Thus, a narrow form of the non-delegation doctrine is consistent with his Youngstown opinion.