Erie as Nondelegation

Abstract

Despite its iconic status, Erie Railroad Co. v. Tompkins’s constitutional basis is unknown. Indeed, because previous justifications for Erie are wanting, leading theorists have claimed that Erie has no constitutional basis at all. This Article challenges that view as profoundly mistaken. While previous accounts of Erie are indeed inadequate, Erie does have a constitutional basis: the nondelegation doctrine. Just as Congress cannot delegate unbridled power to the Executive Branch, Congress also cannot delegate unbridled power to the Judicial Branch. Building on that commonsensical premise, which is consistent with the Constitution’s text and structure and which was endorsed by Chief Justice Marshall himself, this Article argues that Erie overruled Swift v. Tyson because Congress cannot constitutionally empower federal courts to govern the Nation’s commercial law without providing an intelligible principle. Understanding Erie in nondelegation terms also explains the Supreme Court’s more recent holding in Sosa v. Alvarez-Machain, which relied on Erie to read the Alien Tort Statute narrowly. Just as Congress cannot delegate broad authority to the federal courts to govern the Nation’s internal commerce, Congress cannot delegate broad authority to the federal courts to govern the Nation’s foreign affairs. Finally, because Erie, properly understood, holds that the nondelegation doctrine applies to the Judicial Branch, this Article observes that the Sherman Act may be constitutionally problematic as applied.

Keywords: Erie, Erie doctrine, Nondelegation, Alien Tort Statute, Sherman Act, What is the Erie doctrine, Why is the Erie doctrine correct, What is the constitutional basis of the Erie doctrine

JEL Classification: K21, K23, L40