A friend sent me an article from Reason by Jonathan Adler regarding the Constitutional non-delegation doctrine. Its implications for the U.S. regulation of activities in outer space are clear. Certain Justices on the Supreme Court are signalling a willingness to revisit the almost moribund non-delegation doctrine. This means that if and when Congress decides to expand federal oversight of activities in outer space it should do so with care.
If Congress were to pass an overly broad law that delegated the regulation of all space activity to the Executive Branch, that law could be challenged and perhaps overturned as unconstitutional. Historically, Congress has passed space laws clearly identifying what activities an agency should regulate. They include launch, reentry, remote sensing, and satellite communications. It is easy for the public to be able to tell what is regulated, and to be confident that if an activity is not on that list, a person does not need to apply for federal approval–the FAA’s overly broad interpretation of its payload review notwithstanding.
The Obama administration asked Congress for authority over all activities in space in its Section 108 Report. It did not get it. The Trump administration wants the Department of Commerce to regulate space traffic and other unspecified activities. If this Administration and Congress were to follow the Section 108 Report model, Congress may have ceded too much of its legislative authority.
What it is. First, what is the non-delegation doctrine? It’s an infrequently applied rule that says that because the Constitution grants Congress the power to write laws–to legislate–that Congress can’t delegate that authority to the Executive Branch without limit. It first appeared in the sick chicken case (“Schechter“), which some of us may remember from law school. In Schechter, the Court took issue with the New Deal legislation Roosevelt asked for, noting that “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.” After that case, Congress started passing more limited laws, laws which did fetter the Executive’s discretion, and the Supreme Court (threatened by FDR), started upholding more limited delegations of legislative powers. We only have to look around us at the EPA, the FAA, the FCC, NOAA, and all the other agencies with the power to write regulations to know that this is so.
It lives. But Schechter is not completely dead. According to Adler, Justice Kavanaugh, although declining to hear a recent non-delegation challenge, suggested in his separate opinion, that
he is ready to reconsider the Court’s nondelegation precedents, particularly in the context of “major questions.” Among other things, this suggests the Court may be more willing to revisit nondelegation in the context of a major regulatory initiative than in the context of a focused criminal statute–think net neutrality or greenhouse gas regulation as opposed to sex offender registration.
Adler quotes directly from Kavanaugh’s opinion:
I write separately because Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases. Justice Gorsuch’s opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 685–686 (1980) (Rehnquist, J., concurring in judgment). In that case, Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.
In the wake of Justice Rehnquist’s opinion, the Court has not adopted a nondelegation principle for major questions. But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce. See, e.g., Utility Air Regulatory Group v. EPA, 573 U. S. 302 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 (1994); Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).
The opinions of Justice Rehnquist and Justice Gorsuch would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions.
Like Justice Rehnquist’s opinion 40 years ago, Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.
And Adler concludes with the observation: “If that’s not an invitation for litigants to bring additional non-delegation challenges, I do not know what is.”
What to do: identify the boundaries of regulated activities. How may Congress avoid such challenges in the space context? It should follow the Court’s statement of what makes legislation sufficient under the non-delegation doctrine: “it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” American Power & Light Co. v SEC, 329 U. S.90, 105 (1946). To satisfy this standard, Congress should look to its own space law history. Rather than requiring some agency, such as the Departments of Commerce or Transportation, to regulate all activities as a previous administration proposed, Congress could identify each activity that it found required federal oversight. Many activities won’t, so Congress must identify the boundaries of the authority it delegates.
Congress has always identified what activity it wanted regulated in outer space, and it has done so with the proper level of specificity that due process considerations of notice and transparency require. Congress required the FCC to license satellite transmissions. It required the Department of Transportation (DOT) to license the launch of launch vehicles, which authority the DOT delegated to the FAA. Later, Congress required the DOT and the FAA to license the reentry of reentry vehicles as well. Congress also mandated that the seemingly benign activity of taking pictures of Earth—“remote sensing”—requires regulation. Each time Congress determined that something required oversight, whether for reasons of safety, national security, or interference, it identified the activity in question, and it did so with sufficient clarity that persons of ordinary intelligence could tell what was forbidden and what was required.*
Many activities will take place in space that will not expose the United States to a risk of liability under the outer space treaties, or may not be of sufficient concern to justify the expenditure of government resources. Space tourism appears to provide an example of a space activity that causes no concern. One finds no news stories or congressional hearings addressing the need for space tourists to obtain “tourism authorizations.” Likewise, SpaceX’s Dragon vehicle engages in transportation on orbit with no authorization. Each time it determined that a space activity required regulation, Congress had the opportunity to require regulation of all space activities. It did not do so. Instead, it has required authorization for certain activities, but not others, and not all.
Asteroid mining, the activity that provokes the most interest, will take place so far away that it appears unlikely to create a hazard to anyone. Satellite servicing might be a different story, because the speeds involved might be conducive to hazards, but even in that case, if Congress were to decide that all hazards could be addressed by contract, a satellite servicing operator might not merit regulation. These are all policy judgments, legislative judgments. Congress should not give away its authority to make the decisions about what requires regulation if it wants its law to avoid challenge.
In 2016, the previous administration’s Section 108 report proposed requiring authorization and supervision of space “missions,” which it would have defined as “the operation of a space object, with or without human occupants, in outer space, including on the Moon and other celestial bodies.” This would have resulted in requiring the authorization and supervision of numerous trivial activities. It may be hoped that Congress does not adopt something similar now, for it would transfer a vast array of legislative powers–perhaps on par with the sick chicken case–to an Executive Branch regulatory agency.
* I am offering bonus points to any law student who can identify the context of this particular legal test.
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