Just a quick note to point out that the U.S. Court of Appeals for the D.C. Circuit issued a potentially important decision Tuesday rejecting what it suggested would be an impermissible delegation of administrative authority to decisionmaking bodies created by the Montreal Protocol on Substances that Deplete the Ozone Layer. (This decision would be worth noting even if it did not cite one of my law review articles, but because it does, it is even more important!) I wish I had time to analyze it in greater detail, but here are some key grafs:
[The Petitioner’s] interpretation raises significant constitutional problems. If the “decisions” are “law” – enforceable in federal court like statutes or legislative rules – then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification, in violation of Article II of the Constitution. The Supreme Court has not determined whether decisions of an international body created by treaty are judicially enforceable. But there is a close analogy in this court. The United States is a party to a treaty establishing the International Court of Justice (ICJ). In Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988), we held that rulings of the ICJ do not provide “substantive legal standards for reviewing agency actions,” id. at 942, because the rulings, though authorized by the ratified treaty, were not themselves self-executing treaties. Id. at 937-38; see, e.g., Medellin v. Dretke, 544 U.S. 660, 682-84 (2005) (O’Connor, J., dissenting).
[snip]
Nowhere does the Protocol suggest that the Parties’ postratification consensus agreements about how to implement the critical-use exemption are binding in domestic courts. The only pertinent language in Article 2H(5) states that the Parties will “decide to permit” production and consumption necessary to satisfy those uses that they “agree[]” to be critical uses. The Protocol is silent on any specific conditions accompanying the critical-use exemption. Post-ratification agreements setting these conditions are not the Protocol.
To illustrate, suppose the President signed and the Senate ratified a treaty with Germany and France to conserve fossil fuel. How this is to be accomplished the treaty does not specify. In a later meeting of representatives of the signatory countries at the United Nations, a consensus is reached to lower the speed limits on all major highways of the signatory nations to a maximum of 45 miles per hour. No one would say that United States law has thus been made.
“All legislative powers herein granted” are vested in Congress, not in the President, much less in any international body.
It is not well known that the Framers extensively debated the non-delegation doctrine in the early Congresses. One interesting debate was over the delegation to the Executive of the ability to define postal routes. Madison among others successfully argued that this was unconstitutional. See my paper on the origins of the non-delegation doctrine.
See also my own article on NRDC v. EPA.