Hiding Nondelegation in Mouseholes

Abstract

The Supreme Court has begun creating an exception to ordinary rules of deference known as the elephants-in-mouseholes doctrine. Under this doctrine, courts do not defer to an agency's interpretations of a statute where the policy is significant but the statutory hook is relatively insignificant. This article examines the emergence of the elephants-in-mouseholes doctrine and defends it as a good-faith effort to address nondelegation concerns. Nonetheless, drawing on principles of textualism, the article also explains why the doctrine may be difficult to apply consistently.

Keywords: administrative law, nondelegation, Chevron, deference, textualism