Growing administrative skepticism raises questions about whether courts will enforce the nondelegation doctrine with greater vigor. In Bradford v. U.S. Department of Labor, 101 F.4th 707 (10th Cir. 2024), a Tenth Circuit panel rejected a nondelegation challenge to the Federal Property and Administrative Services Act (FPASA). Yet the dissent would have held that the FPASA violates the nondelegation doctrine because it relies on the President’s subjective determination about what is “necessary” to promote the efficiency of federal contracting.
The FPASA authorizes the president to “prescribe policies and directives that the President considers necessary” to “provide the Federal government with an economic and efficient system for . . . [p]rocuring and supplying property and nonpersonal services.” 40 U.S.C. §§ 121(a), 101(1). In 2014, President Obama ordered the Department of Labor (DOL) to promulgate regulations requiring federal contractors to pay their employees a minimum wage. See Exec. Order 13,658 (Feb. 12, 2014). In its final regulation, DOL classified permits allowing outfitters to operate on federal lands as contracts. President Trump exempted these outfitters from regulation in Exec. Order 13,658. Most recently, President Biden revoked Exec. Order 13,658. See Exec. Order 14,026 (Apr. 27, 2021).
A group of outfitters sought a narrow interpretation of the FPASA, arguing that it only applies to property and services provided by the federal government. According to the outfitters, the federal government does not provide recreational services and, therefore, the president cannot use the FPASA to regulate the outfitters’ permits. More importantly, they argued that the government’s expansive interpretation of the FPASA violated the nondelegation doctrine.
The majority concluded that the plain text of the FPASA allows the president and DOL to regulate the terms of the permits. They wrote, “[The outfitters] ‘supply[ ]’ services through the guided tours they offer. And the government’s provision of federal permits to [the outfitters] is part of an ‘economical and efficient system’ for supplying those nonpersonal services to the public.” Bradford, 101 F.3th at 719 (quoting 40 U.S.C. § 101(1)).
The majority then rejected the nondelegation challenge. When Congress delegates authority to the president, it must provide an “intelligible principle” that guides the president’s exercise of that authority. They concluded that the FPASA provides an intelligible principle because it only allows policies that are “necessary” to promote an “economic” and “efficient” system of procurement and supply. Id. at 729–30. They drew parallels to the Supreme Court’s decision in Whitman v. American Truck Associations, 531 U.S. 457 (2001), which upheld the authority of the Administrator of the Environmental Protection Agency (EPA) to set air quality standards that “are requisite to protect the public health” “in the judgment of the Administrator.” Id. at 472 (quoting 42 U.S.C. § 7409(b)(1)).
In a dissent, Judge Allison Eid concluded that the “FPASA runs afoul of the nondelegation doctrine,” because Congress failed to provide the president with an intelligible principle. She characterized the FPASA’s delegation as expansive, allowing the president to “regulate any industry of someone who has a contract-like instrument with the federal government.” Id. at 735.
According to Judge Eid, the intelligible-principle standard is satisfied when Congress either “(1) require[s] the President to conduct any preliminary factfinding or to respond to a specified situation” or “(2) provide[s] the President a standard that sufficiently guides his broad discretion.” Id. at 733 (Eid, J., dissenting). Her analysis focused on the second element. She rejected the majority’s argument that the terms “economic” and “efficient” sufficiently constrain the President’s discretion. Words like “economic” and “efficient” describe a “statement of general aims” that “cannot form an intelligible principle without additional limits.” Id. at 737. Judge Eid distinguished Whitman because the delegation in that case required EPA to fix air quality standards based on “the latest scientific knowledge.” Id. at 738. By contrast, the FPASA uses subjective criteria for determining when a policy is “necessary.” It allows the president “to take any measure ‘that the President considers necessary’” and does not provide objective criteria for determining what constitutes a necessary policy. Id. at 737–38. Given the scope of the delegation, Congress was required to provide greater guidance to the president. Id. at 740.
