The False Promise of the 'New' Nondelegation Doctrine

20 Pages Posted: 22 Mar 2000 Last revised: 21 Feb 2019

See all articles by Mark Seidenfeld

Mark Seidenfeld

Florida State University College of Law

Jim Rossi

Vanderbilt University - Law School


This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law serves three primary functions: it reduces uncertainty; it minimizes the likelihood of government tyranny; and it helps to assure political accountability. Judicially enforced ex ante constraints, however, are not necessary to perform any of these functions, and may even undermine some of them. In addition, the rule of law is not the be-all and end-all of regulatory systems. There are countervailing benefits to a system that allows for regulatory flexibility. Although there may be some role for ex ante constraints in controlling agency discretion, the factors that determine the means of limiting agency discretion are political rather than legal in nature. Thus, imposition of ex ante limitations is best left to the political process--not to courts.

Suggested Citation

Seidenfeld, Mark and Rossi, Jim, The False Promise of the 'New' Nondelegation Doctrine. 76 Notre Dame L. Rev. 1 (2001), FSU College of Law, Public Law and Legal Theory Working Paper No. 01, Available at SSRN: or

Mark Seidenfeld (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-3059 (Phone)
850-644-5487 (Fax)


Jim Rossi

Vanderbilt University - Law School ( email )

131 21st Ave S
Nashville, TN 37203-5724
United States
6153436620 (Phone)

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