Origins of the Non-Delegation Doctrine
36 Pages Posted: 7 Jul 2008 Last revised: 21 Jul 2008
Date Written: July 7, 2006
This paper explores the philosophical, political, constitutional, and statutory origins of the nondelegation doctrine, especially with respect to the delegation to the executive of the power to make domestic (ius civile) law. The paper will discuss a variety of principles related to delegation to the executive of the power to make law, such as the separation of powers, representation, and the interpretation of statutes. It will look at certain early cases in related areas (as there was no early Supreme Court case on point for delegation to the executive in ius civile statutes), and will focus on an important but little known debate in the early Congress over the non-delegation doctrine in a postal statute. A number of factors and distinctions are uncovered that may shed light on modern nondelegation cases. Distinctions include those between ius gentium (foreign policy) and ius civile (domestic policy) law and between criminal law and civil law. Factors include expertise, representation distance, the degree to which a delegation will combine not only law-making and executive power but also judicial power, and the power given by a delegation to deprive persons of life, liberty, or property.
Keywords: Nondelegation Doctrine, Non-Delegation Doctrine, Originalism, Madison
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