Nondelegation and the Unitary Executive

26 Pages Posted: 12 Mar 2010 Last revised: 26 Aug 2010

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Steven Menashi

George Mason University

Date Written: 2009

Abstract

Americans have always mistrusted executive power, but only recently has "the unitary executive" emerged as the bogeyman of American politics. The idea seems ominous today because so many functions have been allocated to the now-fragmented executive branch that reuniting it under presidential leadership seems to the present generation both to enhance presidential authority unimaginably and to create an unmanageable administrative structure. We suggest the unitary executive has fallen into ill repute and apparent obsolescence not because of an executive bent upon autocracy but because of a legislature freed from the constraints of the separation of powers. Complementing the Constitution's positive grant of authority to the President is the understanding that the other branches would be confined to their own respective spheres. A necessary corollary of the theory of the unitary executive, then, finds expression in the nondelegation doctrine – the idea that the Congress cannot delegate its lawmaking powers to the executive or the judiciary.

Keywords: nondelegation doctrine, unitary executive

Suggested Citation

Ginsburg, Douglas H. and Menashi, Steven, Nondelegation and the Unitary Executive (2009). University of Pennsylvania Journal of Constitutional Law, Vol. 12, No. 2, p. 251, 2010. Available at SSRN: https://ssrn.com/abstract=1567819

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Steven Menashi (Contact Author)

George Mason University ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
202-596-7375 (Phone)
202-315-3462 (Fax)

HOME PAGE: http://bit.ly/sjm-gmu

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