Who's Exercising What Power: Toward a Judicially Manageable Nondelegation Doctrine
Posted: 12 Dec 2014 Last revised: 29 Jul 2016
Date Written: December 10, 2014
The non-delegation doctrine is one of American Constitutional law’s peculiarities: judges of all ideological stripes describe it as fundamental to our Constitutional system of government, but very few judges can — or will — readily apply it to invalidate an act of Congress. This paper, currently a completed draft, explores the development of the non-delegation doctrine, describes its long winter of non-use, rehearses scholarly attempts to both inter and reanimate it, and proposes a fresh approach to utilizing the doctrine in the future. This fresh approach, which I term “the institutional nature paradigm,” contemplates examining not only the delegation from Congress, but also the delegate, in terms of its place within the traditional hierarchy of federal power. While the paper focuses on delegation, it also raises future questions regarding the contours of legislative, executive, and even judicial power under the United States Constitution.
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