Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

23  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  Offering neither originalist nor functionalist support for their in- terpretation, the concurring Justices rely entirely on the text of Article II–specifically, its reference to state “legislatures” directing the manner of choosing presidential electors. This spare textual reference simply does not bear the weight the concurrence ascribes to it. Article I of the Constitution declares that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” 63 Yet nobody has ever suggested that this language precludes judicial interpretation of congres- sional statutes. Indeed, since 1935 the Court never has held that this constitutional mandate that Congress exercise “[a]ll legislative power” precludes Congress from enacting vague (meaningless) statutes that es- sentially delegate the lawmaking power to administrative agencies and to courts. 64 Indeed, some members of the conservative plurality are among the biggest proponents of the Chevron doctrine, 65 which requires federal courts to defer to “reasonable” agency interpretations of statutes, notwithstanding the Article I injunction that Congress “legislat[e].” 66 In Bush , Chief Justice Rehnquist does not explain why broad-ranging judi- cial and administrative interpretation of federal statutes is permissible in spite of Article I’s requirement that “[a]ll legislative powers” be vested in “Congress,” but Article II’s injunction that state “[l]egislatures” direct the manner of appointing presidential electors forbids state courts from engaging in ordinary statutory interpretation of state election law. Thus, not only does the plurality offer no originalist or functionalist justification for its Article II argument, but its bare textualist claim is almost laugha- ble. It appears likely that nobody in the first two hundred years of the Republic ever dreamed of this interpretation of Article II. Chief Justice Rehnquist seeks to bolster the flimsy Article II argument by observing that there are other “areas in which the Cons- titution requires this Court to undertake an independent, if still de- 63 U.S. Const., Art. I, §1. 64 The last Supreme Court decisions invalidating federal legislation on nondelegation grounds were Panama Refining Co v. Ryan, 293 U.S. 288 (1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). For a modern illustration of how defunct the nondelegation doctrine is, see Mistretta v. United States, 488 U.S. 361 (1989). In all fairness, at least the Chief Justice is on record as favoring a reinvigoration of this doctrine. See, e.g., Industrial Union Dep’t v. American Petroleum Institute, 448 U.S. 607, 672-76 (1980) (Rehnquist, J., concurring). 65 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); see also Laurence H. Tribe, American Constitutional Law 994 n.52 (3d ed. 2000) (collecting Chevron cases). 66 See, e.g., NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 133-34 (1987) (Scalia, J., concurring, with Rehnquist, C.J.); INS v. Cardoza-Fonseca, 480 U.S. 421, 453-55 (1987) (Scalia, J., concurring).