The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and its Implications for Clinton v. New York
Michael B. Rappaport
University of San Diego School of Law
Tulane Law Review, Forthcoming
This article presents a new theory of the nondelegation doctrine. It argues that the original meaning of the Constitution supports a strict, formalist version of the doctrine in most areas, but that the doctrine does not apply to certain selected areas of the law. The article derives a strict version of the doctrine primarily from the Executive Power Vesting Clause, which allows the President to exercise only limited discretion. Although the term executive power is ambiguous and could be interpreted to allow the President to receive a significant degree of statutory discretion, I argue that history, structure and purpose indicate that it should normally be interpreted to allow the conferral of only limited discretion. This limited discretion contributes to four basic structural constitutional principles: the separation of powers (by segregating legislative from executive power), bicameralism (by ensuring that legislation is passed by both houses of Congress), federalism (by making it difficult to enact federal legislation), and checks and balances (by limiting the power that can be given to the executive branch).
Although the executive power normally restricts the degree of discretion that the executive branch can receive, I argue that in certain areas the executive power had a broader original meaning. In certain areas, history, structure, and purpose indicate that executive power allowed the conferral of broader discretion on the executive. In particular, in areas where executives have traditionally received broad delegations and where limiting delegations would promote constitutional principles much less than it ordinarily would, there is a strong case for concluding that the nondelegation doctrine does not apply. Based on this theory, I argue that the nondelegation doctrine probably does not apply to various matters, including foreign and military affairs, foreign commerce, rules governing the internal operations of the judiciary and the executive, and the management of government real estate.
Although this article presents the selective theory of the nondelegation doctrine, it does not provide a comprehensive defense of the theory. Instead, the article applies the theory to one area - that of spending laws - in an exploration of the constitutionality of the Line Item Veto Act. I argue that the nondelegation doctrine applies in an unusual way in the spending area. Appropriation laws - laws that authorize the withdrawal of money from the treasury and which traditionally have taken the form of authorizing a certain amount to be spent for particular programs - are not subject to the nondelegation doctrine. However, authorization laws - laws that establish and regulate government programs - are subject to the nondelegation doctrine and therefore Congress must make the basic policy decisions about how such programs must operate. Thus, Congress can pass appropriation laws each year that confer as much discretion as they desire, but these laws can only fund programs that have been established by statutes that make the basic policy decisions about how these programs must operate.
Date posted: October 3, 2001
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