Joseph Diedrich (Husch Blackwell LLP) has posted Delegation Running Ratchet on SSRN. Here is the bstract:
In the nondelegation doctrine’s “one good year,” Justice Benjamin Cardozo famously denounced a portion of the National Industrial Recovery Act as “delegation running riot.” Ninety years later during oral argument in Learning Resources, Inc. v. Trump—the blockbuster case testing the validity of President Trump’s signature tariffs—Justices Neil Gorsuch and Amy Coney Barrett highlighted a particular structural problem accompanying Congressional delegations of power to the President. Although Congress needs only a bare majority to delegate power to the President, the Justices observed, it likely needs a supermajority to retrieve that power because most Presidents will veto legislation curtailing their authority. Simply put, it is easier to delegate power than to retrieve it. This asymmetrical “retrieval problem,” in Justice Gorsuch’s words, acts as a “one-way ratchet toward the gradual but continual accretion of power in the executive branch.” With apologies to Justice Cardozo, one might call this phenomenon delegation running ratchet.
This Essay explores the implications of the retrieval problem and its ratchet effect. First, it provides a brief background on the nondelegation doctrine, followed by a deeper dive into the retrieval problem. Second, this Essay differentiates the retrieval problem from other characteristics a delegation may have, such as whether statutory language lays down an intelligible principle, or whether the delegation hands over criminal-law authority. In doing so, it offers a way to incorporate insights from the retrieval problem into nondelegation analysis. Third and finally, this Essay explains how some Congressional delegations of power implicate a greater retrieval problem than others, and how Congress can mitigate the retrieval problem’s ratchet effect.
Summed up, the President’s veto authority often makes it more difficult for Congress to retrieve previously delegated power than to delegate in the first place. This retrieval problem—and its attendant ratchet effect—is not created equal. Some delegations implicate a greater retrieval problem than others; some do not at all. The existence and degree of a delegation’s retrieval problem can and should be one factor among many that courts weigh when evaluating the delegation’s constitutionality.
Highly recommended.