The Supreme Court of the United States
Case №20–08 101 M.S.Ct. 117
JJEagleHawk, J., delivered the opinion of the Court, in which IAmATinman, C.J, and CuriositySMBC, Bsddc, and Ibney00, JJ., joined. IAmATinman, C.J., also wrote separately in concurrence, which Bsddc joins. Bsddc, J., wrote separately in concurrence. Reagan0, J., filed a dissenting opinion. Dewey-Cheatem, J., took no part in the decision.
I. Introduction & Procedural posture
This case involves tension between the exercise of powers by the Executive and Legislative branches, ratcheted up to eleven with national security implications. At the heart of the matter is whether the Legislative branch has validly appropriated money and whether the Executive branch has appropriately spent it. We find that the Legislative branch has, and that the Executive branch did.
II. Factual Background & Procedural Posture
Last year, Congress passed H.R. 283,¹ the 2019 Presidential Budget Request, into law, which President GuiltyAir signed on March 24, 2019.² This budget provided for $3.791T in appropriations and expenditures, with an expected budget surplus of $113.7B.³ The Department of Defense received appropriations totaling $650.7B, with specific provisions earmarked for various subdepartments, directorates, field activity, defense agencies, Department of Defense (“DoD”) undersecretaries and assistant secretaries, etc.
At issue in this case are the subdepartment appropriations (i.e. Army, Navy, Air Force, and DoD itself). The 2019 Budget listed specific line-items for classes of expenditure in each subdepartment, as follows: (a) military personnel, (b) operation and maintenance, © procurement, (d) RDT&E, (e) revolving and management funds, (f) military construction, (g) family housing, and (h) overseas contingency operations. While the line-item descriptions are the same in each subdepartment, the amount of appropriation for each subdepartment varies.⁴ These allocations remain current today, as Congress has not passed a 2020 budget.⁵
On May 26th, 2020, President Gunnz011 signed Executive Order 23, which noted:
This administration has been developing strategies to combat attacks on our undersea cable network in the Pacific Ocean. After comparing several options, it was decided that one of the most viable options would be a manned defense of these cables. After evaluating our current submarine fleet, we could not find anything that properly suited our needs. It became obvious new solutions needed to be created.⁶
The remaining portion of Executive Order Section 1 describes two new submarine classes — the Minnow and Rhode Island — to address these needs. Section 2 then directs the Department of Defense to “prepare to find a producer” for these submarines, with a contract entered on or before January 1, 2021 for 8 Minnow-class and 5 Rhode Island-class submarines. Section 2 also directs the DoD Secretary to oversee the project and report to the President regarding its progress.
Petitioner /u/JacobInAustin filed a request for certiorari under Supreme Court Rule 5, seeking review of Executive Order 23 and a determination that same violates the separation of powers doctrine. Petitioner argued that the President lacked the power to order the construction of submarines absent an intelligible, specific appropriation from Congress to do so, and “procurement” is not an intelligible basis for purchasing submarines. Respondent, by and through counsel /u/rachel_fischer, argued⁷ that Executive Order 23 is both a lawful exercise of presidential power (since the President has the authority to direct the use of funds appropriated by Congress) and of legislative power (since Congress can, and did, appropriate lump-sum funds to the Navy for procurements, which could include the procurement of submarines).⁸
We granted certiorari on May 30, and both parties have completed their briefing and oral argument. The matter is now ripe for ruling.
III. Analysis
The exclusive budgetary power of Congress is not contested by either party, for good reason — Art. I, Sec. 1 of the U.S. Constitution exclusively vests “all legislative powers” in Congress, not the Judiciary or Executive branches. These legislative powers include the power to “pay the debts and provide for the common defense and general welfare of the United States,” “raise and support armies”,⁹ and to “provide and maintain a navy.” U.S. Const., Art. I, Sec. 8. This Court has repeatedly held that constitutional power is non-delegable — i.e. Congress cannot transfer or delegate its constitutional power to legislate to anyone else, including the Executive branch or private entities.¹⁰
Once Congress has passed a law, it can — and regularly does — authorize government officials or agencies to regulate or otherwise implement the laws it passes. When it does so, Congress is required to “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.”¹¹ This standard, which focuses on the degree of discretion granted by Congress, has proved over time to be a very lenient standard, as this Court has rarely struck down a Congressional pronouncement for lacking intelligibility.
Here, we think there is — barely — enough intelligibility to pass muster under this standard. Congress clearly intended to provide for the Navy via appropriations in its 2019 Budget. Such appropriations included $40,960,000,000 for “procurements.” What does this mean? Well, we know what “procurement” is: “the act of obtaining equipment, materials, or supplies.”¹² We also know what procurement isn’t, because separate Congressional appropriations were made for military personnel, operation and maintenance, RDT&E, revolving and management funds, military construction, family housing, and overseas contingency operations. The only question before us, then, is whether submarines qualify as “equipment, materials, or supplies,” one of these other things, or none of the above. We think submarines fall sufficiently within equipment to pass muster. So too would truck nutz, cthulhu-shaped gas masks, or friggin’ laser beams to attach to the heads of sharks.¹³ ¹⁴
Perhaps Petitioner thinks it was unwise for Congress to provide the Department of Defense (or the President) with such a large blank check to buy….whatever. But Congress’ wisdom in making such procurements is not subject to review. After all, the Constitution does not require legislators to be intelligent.¹⁵ It only requires that its enactments be intelligible. Here, we think it was.
The Court finds for Respondent. Thus, Petitioner’s case is dismissed. Happy birthday America!
So ordered.
Chief Justice IAmATinman concurring, joined by Bsddc, JJ.
I agree with the Court that the appropriation by Congress for “naval procurements” and Executive spending are valid under our current intelligible principle standard. The merits of this decision highlight a “troubling nature” of our nondelegation doctrine jurisprudence. Arkansas v. Oklahoma, 503 U.S. 91, 112 (1992). The doctrine holds that there are some functions so “essential” to each branch that they cannot be delegated to the other coordinate branches of the government. Schechter Corp. v. United States, 295 U.S. 495, 529 (1935). This doctrine, while ostensibly mighty, has been whittled down¹⁶. The true delegation, it seems, is our role. I believe that it is time to reconsider this approach.
Only three times this century has this Court invalidated any delegation of legislative power to duly confirmed agency personnel or to the president.¹⁷ At other times, this Court has seen fit to strike statutes that impermissibly delegated power to an agency that was not created, or whose members were not appointed, in conformity with the Constitution. See, e.g., Buckley v. Valeo, 424 U.S. 1 (finding that Congress could not give the President pro tempore of the Senate and the Speaker of the Representatives power to appoint members of the Federal Election Commission.).
To understand where we are going, we must understand how we got there.
The roots of the doctrine can be found in the writings of John Locke. Locke said that as the legislature was the conduit by which the people were represented, the legislature should not transfer their power to anyone else. John Locke, The Second Treatise of Government (1689). The United States Constitution’s nondelegation doctrine was intended to defend against this breakdown of legislative accountability. It is the duty of the legislature to make laws, not to create legislators.
The second principle behind nondelegation is that of the separation of powers. See Mistretta v. United States, 488 U.S. 361, 371 (“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government”). It is well settled that separation of powers is a lynchpin of our constitutional order. It remains “a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another” Loving v. United States, 517 U.S. 748, 757 (1996). The nondelegation doctrine conceivably forbids the intermingling of power, ensuring that our federal government does not consolidate such power to the detriment of her citizens.
These principles are intertwined into our Constitution. They are so vital to our government as conceived that without them one could not view our republic as functioning as intended. The Federalist №10, at 82 (James Madison) (Clinton Rossiter ed., 1961). After all, the separation of powers means nothing if we aren’t willing to separate those powers.
We catch a glimpse of where our nondelegation jurisprudence was going in Cargo of Brig Aurora v. United States, 11 U.S. 382 (1813). There, the Court held that conditional legislation is a permissible delegation of authority by Congress. This was further expanded on by our Court in Marshall Field & Co. v. Clark, 143 U.S. 649 (1892) (which created a distinction between “the delegation of power to make the law” and “conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.” The former forbidden, the latter allowed).
The two aforementioned cases discussed delegation of authority versus delegation of legislative power. Compare id, (holding that the Tariff Act of 1890 was a permissible delegation of authority to a “mere agent of the law-making department” with Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (holding that Congress is “not permitted to abdicate” to other branches “essential legislative function”).
Then in J.W. Hampton, Jr., & Co. v. United States, the Court developed a new way to analyze delegation questions. J.W. Hampton concerned a challenge to the “flexible tariff provision” of the Tariff Act of 1922. id, 276 U.S. 394, 400 (1928). The provision authorized the President to fix certain rates of goods dependent on his determination. id, at 400, 401. The determination would be based on four considerations laid out by Congress. id, at 402. The provision was challenged, but upheld as a permissible delegation of authority as the Court found a “clearly defined policy and plan” and the authority granted was “merely a determination” that complied with that plan. id, 404, 405. In sum, the President was not executing a delegation of legislative power, but was securing the enactment and intent of the legislation. id, at 406. The J.W. Hampton Court, through the analysis of Justice Taft, proclaimed the “intelligible principle” standard. id, at 409. (“[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized [to act] is directed to conform, such legislative action is not a forbidden delegation of legislative power”).
Since then, we have seen a divergence from what the intelligible principle standard originally stood for and was based upon: conditional legislation. Compare Cargo of Brig Aurora v. United States, 11 U.S. 382 (holding that conditional legislation is a permissible delegation of authority) with Mistretta v. United States, 488 U.S. 361 (1989) (removing the requirement of conditional legislation from the intelligible principle standard). The intelligible principle standard has also allowed for the delegation of purely legislative activities. Compare Marshall Field (President was delegated the ability to make a factual determination within the limiting principles set forth by Congress) with J.W. Hampton (President was making both a factual determination as well as a determination of what the rates should be)¹⁸. This is not how our government is supposed to work.
This Court decided two major nondelegation cases in the same year that shaped our jurisprudence Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States.
In Panama Refining, this court struck down a provision of the National Industry Recovery Act which authorized the President to prohibit the transportation of petroleum products. Panama Refining, 293 U.S. 388, 405. The Panama Court laid down a three criteria test to determine whether the delegation of legislative authority was unlawful. id, at 415 (“[W]hether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President’s action; [and] whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.”).
This test gave at least some semblance of meaningful boundaries to the intelligible principle standard. Congress must make clear a “policy and plan” to which the President must act for and within. Congress must also mandate the conditions upon which such action may take place. This merging of the historic conditional legislation delegation and the intelligent principle promoted both legislative accountability and separation of powers; the cornerstones of our nondelegation doctrine.
In the same term, this Court struck down another provision of the National Industry Recovery Act in A.L.A. Schechter. The provision authorized the President to approve “standards” and “codes of fair competition” for trade and industry associations. id, at 538. The President, in approving a code or standard, “may impose his own conditions, adding to or taking from what is proposed” id, 495, 497. The Schechter Court struck down this provision as an impermissible delegation of legislative authority. The delegation was “virtually unfettered.” id, at 542. It allowed the president to not just make a factual determination, but a discretionary finding. id, 538, 539.
Although not directly applied, these cases give us a glimpse into the boundaries and principles of the intelligible principle standard.
The nondelegation doctrine has since been relegated to the ashbins of our jurisprudence. As stated, ante, only three times this century has this Court struck down a delegation of legislative power under this doctrine. No matter how broad the delegation seemed or was, they have been upheld.
Our modern nondelegation jurisprudence is based on the development and complexity of modern government. But, complexity does not require appeasement or “surrendering [of] our principles.” James P. Hambleton, A Biographical Sketch of Henry A.Wise, 165.
The growth of the administrative state under New Deal policies and this Court’s restraint at tackling such growth under modern government has led the intelligible principle down a dark path.
There were several challenges to legislative delegations of power in the several years succeeding Panama and Schecter. All of which were upheld, even the most broad and boundless. In National Broadcasting Co. v. United States, this Court upheld the Communications Act of 1934 which delegated to the Communications Commission the ability to adopt regulations “as may be necessary to carry out the provisions of the Act” that were in the “public interest, convenience, or necessity. 319 U.S. 190, 193, 194 (1943).
This “public interest” policy objective was upheld numerous times following this decision. See, e.g., Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 611 (1944) (upholding delegation to the Federal Power Commission to fix “just and reasonable rates” for natural gas prices that were “consistent with the maintenance of adequate service in the public interest”); Fed. Commc’ns Comm. v. Pottsville Broad. Co., 309 U.S. 134, 137–38 (1940) (upholding the Communications Commission’s authority to create a regulatory system that grants or denies licenses based on “public convenience, interest or necessity”).
But, this wasn’t the most egregious break in our nondelegation jurisprudence. The standard was seemingly replaced with an abdication of our duty to defend our republic.
This Court signaled its biggest shift in understanding of the intelligible principle standard in Yakus v. United States. In this case, this Court upheld the Emergency Price Control Act which delegated authority to establish “fair and equitable” prices to “stabilize wartime prices.” to the newly-created Office of Price Administration. 321 U.S. 414, 420 (1944). The Court distinguished the priorly held discretionary “codes of fair competition” from establishing “fair and equitable” prices. This contrary holding moved this Court away from our original understanding of the intelligible principle standard and allowed Congress to delegate more of its authority more often.
This Court further recklessly abandoned our previous intelligible principle standard in American Power & Light Co. v. Securities & Exchange Commission. The Securities & Exchange Commission were given the authority to ensure that the holding company system did not “unduly or unnecessarily complicate the structure” or “unfairly or inequitably distribute voting power among security holders.” 329 U.S. 90, 104 (1946). This Court upheld that delegation of authority as permissible. Again, creating a new standard that is not seen in the history of our nondelegation jurisprudence.¹⁹ It was created whole cloth to supplement the change in government’s structure as executive-led.
These broad and boundless delegations reflected “the necessities of modern legislation dealing with complex economic and societal problems.” id, at 105. The intelligible principle standard went from a standard based upon founding principles to one based upon a pragmatic realization by this Court of not wanting to make unpopular or politically inconvenient decisions. But, of course, that’s our job. See Garcia v. San Antonio Transit Authority, 469 U.S. 528, 589 (1985) (O’Connor, J., dissenting) (“Regardless of the difficulty, it is and will remain the duty of this Court to reconcile these concerns in the final instance.”).
The Court’s decisions in Yakus, National Broadcasting Co., and American Power & Light Co. stripped any original meaning of the “intelligible principle.”
In attempting to promote “practical solutions to an ever changing, complex society”, the doctrine has prevented judicial decisions from being based on the law. Mistretta, at 372; See Erie R. Co. v. Tompkins, 304 U.S. 64, 75 (1938). The “injustice” to the founding principles of the standard and founding incident to the intelligible principle and nondelegation doctrine is cause for a reconsideration of our nondelegation jurisprudence. See id, 77 (1938).
After considering the historical record, I am in favor of revisiting and reconsidering our nondelegation jurisprudence in light of our founding principles. For “[s]tare decisis is not a universal, inexorable command,” especially in cases involving the interpretation of the Federal Constitution. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 954 (1992) (quoting Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).
Since the question of whether the intelligible principle standard should be reconsidered is not adequately before this court, I join the Court’s opinion today and concur in the judgment. In re Dixie Bill 177 (The Dismemberment Abortion Ban Act, 101 M.S. Ct. 106 (2018) (“We will not revisit settled law without cause; especially when we are not asked to do so.”). I look towards the future for a time when this question is put forth to this Court. I cannot single out this appropriation under a different standard than the one we have applied for a century.
Happy birthday America!
Justice Bsddc, concurring.
I write separately for one reason only — to briefly respond to the dissent in this case. The dissent intimates that the Court (referred to as “the majority”) is foolishly throwing its hands up in the air, writing that intelligence is a “non requisite” for “our ranks.” I was unaware that application of stare decisis and limiting issues resolved to those raised by the parties is a “fallacious road of self-gratification.” Quite the opposite actually. Resolving the case along the lines of the dissent would depart from the fundamental nature of litigation and our judicial role.
To be clear, the dissent suggests that the Court go out of its way to overturn nearly a century of practice without anyone asking us to do so. In so doing, the dissent bemoans our “folly,” our “abdication,” and decades’ worth of reasoning the dissent insists will break like tiny umbrellas. Several justices criticize the intelligible principle standard today, myself included. But to question the intelligence of your fellow jurists or a co-equal branch of government is a step too far.
In short, the dissent doth protest too much. Happy birthday America!
Justice Dobs, dissenting.
I. Establishing Circumstance
Today, the court paves yet another mile of long yet fallacious road of self-gratification. Today’s case deals with the principle of Congressional nondelegation. The majority finds that Congress has acted within its bounds to validly appropriate funds and that the Executive has acted appropriately in its expenditure of those funds. They are wildly wrong on both counts. Today’s opinion continues a fundamental degradation of the separation of powers.
Petitioner /u/JacobInAustin contends that President /u/Gunnz011 acted inappropriately when he ordered procurement of Rhode Island and Minnow class submarines. While government counselor /u/Rachel-Fischer may contend that such an Executive Order was not tantamount to order of procurement but simply “preparation to procure,” that argument ought to be dismissed out of hand. The facts of the case as established lead any reasonable observer to conclude that the President did order the procurement of the aforementioned submarines and that such an order is both inconsistent with his power but also reflects a budgetary allocation inconsistent with the nondelegation doctrine.
II. The Folly of the Majority
Unfortunately, beyond granting review for this abundant abuse of power, the court has not taken the steps necessary to restore the balance of power between the Legislature and Executive. The majority is correct in its impressive ability to read Article I’s mandate that “all legislative powers” be vested in the Congress. Sadly, this ability to read did not translate into an ability to comprehend. Indeed, the majority writes that “[appropriation power] is non-delegable” and then proceeds to play into the tired jiggery pokery that such power is outside the constraint of the nondelegation doctrine.
The majority has fallen into the honeypot laid down by the government. They hold that a broad-based label of “naval procurement” is intelligible. What then, might the navy be procuring? The majority brings forth some delightful examples. Perhaps laser beams? Perhaps the intended naval assets? Or perhaps we are discussing the colorful little umbrellas, of which I am quite personally fond, found in mixed drinks in many Navy bars. Unfortunately, the government’s argument and the majority opinion casts its lot far too closely with those tiny umbrellas. Both seem colorful and fun yet will break under the slightest pressure. To enact such a broad abdication of its own power to “provide and maintain a navy” and allow the Executive to, if not provide, then certainly maintain a navy can constitute nothing but a delegation impermissible under the understood prohibition.
III. The Tragedy of the Standard
The government attempted to argue that the power of appropriation falls outside the bounds of the nondelegation doctrine. This perhaps represented the most wildly inaccurate statement made in this whole procedure. The power of the purse is most fundamental to the proper function of the legislative branch. To abdicate this authority is to give over its force majeure to a rapacious Executive Branch intent on consolidating power. There is wisdom in a phrase once uttered by a late colleague of mine, “Good fences make good neighbors.” This court has neglected to maintain the fence between the Executive and Legislature for far too long. Since 1928, we have slowly chipped away at the fundamental truth that Congress may not resign its authority to allocate the federal budget. We have allowed partial-delegation in the name of “intelligibility”. Most ironically, we have sacrificed our own intelligibility in the process.
As the majority stated, these concerns are “ratcheted up to eleven with national security implications.” It is irresponsible of this court to continue to ignore the need to revisit the “intelligible principle” when clearly we have liberated the Congress from the imperious notion that they ought to do their job. We have enabled them to retire that duty as long as they leave good instructions for the next guy [in this case the President] who attempts to do what they could not; legislate effectively. My colleagues in the majority are correct, there is no mandate for intelligence among legislators. Today the court demonstrates that non requisite for our own ranks. All three branches of governments appear delinquent in their appropriate powers and responsibilities.
Because we have failed to properly apply the nondelegation doctrine and have continued to erode its ability to girder the separation of powers, I dissent. Happy birthday America!
¹ https://www.reddit.com/r/ModelUSSenate/comments/b3jhvr/hr283_floor_vote/
² https://www.reddit.com/r/ModelWHPress/comments/b4sa08/bill_signings_3242019/
³ The spreadsheet for the 2019 Budget can be found here.
⁴ For example, the Navy was appropriated $40,960,000,000 for “procurement,” while the Army received “only” $14,350,000,000. Boats are, apparently, much more expensive than tanks.
⁵ See https://old.reddit.com/r/modelSupCourt/comments/gt5e7y/in_re_executive_order_23/fsl4cqw/
⁶ https://docs.google.com/document/d/1cUHUmB1Quw-mDAlsshQ49Mi_zUMsj-7XY_ppI0ddV7s/edit
⁷ Respondent also argued that requiring the Defense Secretary to prepare to find a producer and contract with them is not an order to actually procure anything. This argument is nonsense. The Executive Order detailed the number of submarines to be produced pursuant to this contract. Respondent cannot seriously believe that the inevitable producer of these quantity-certain submarines is going to donate them to the Department of Defense. We think it more reasonable to assume that these submarines will be bought.
⁸ Respondent did not argue that a “sub” department can obviously buy subs, which would not have been the best argument, but it definitely would have been the funniest.
⁹ The enumerated power to raise an army states that “no appropriation of money to that use shall be for a longer term than two years,” but there is no such restriction on the navy. The appropriation in this case, fortunately, is not more than two years old, so this can remain an interesting quirk rather than the linchpin of our analysis.
¹⁰ See, e.g., Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935); Carter v. Carter Coal Co., 298 U.S. 238 (1936); Touby v. United States, 500 U.S. 160 (1991); see also Buckley v. Valeo, 424 U.S. 1 (1976) (Congress cannot delegate to itself an appointment power vested in the Executive branch).
¹¹ J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394 (1928)
¹² Oxford’s English Dictionary (2020), at https://www.dictionary.com/browse/procurement?s=t
¹³ We note, however, that procuring the sharks themselves would fit better into “military personnel.”
¹⁴ A copy of this opinion will be provided to the Defense Secretary, in case he wants to use these equipment ideas.
¹⁵ It is unknown to this Court whether it was intelligent of the Founders to leave out such a requirement. All we can determine for sure is that, if they had, this Court would never again be subject to complaints of inactivity.
¹⁶ Most recently, this Court called the intelligible principle standard “relatively low” In Re: Public Law B.137 (Gang Activity Prevention Act), 100 M.S. Ct. 115 (2016). One should not have to call a foundational piece of armor protecting our republic, as we know it, “relatively low.”
¹⁷ In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and In Re: Public Law B.137 (Gang Activity Prevention Act), 100 M.S. Ct. 115 (2016)
¹⁸ The Court suggested that this delegation of legislative authority was based on practical, not legal, considerations. J.W. Hampton, 276 U.S. at 407
¹⁹ This Court held that legislative delegations were sufficient as long as Congress “laid out (1) a general policy, (2) “the public agency which is to apply” the policy, and (3) “the boundaries of this delegated authority.” American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105 (1946).
