The Inherent-Powers Corollary: Judicial Non-Delegation and Federal Common Law

90 Pages Posted: 3 Aug 2015 Last revised: 17 Aug 2015

Date Written: August 7, 2015


Congress often explicitly delegates lawmaking power to courts — or does so implicitly by giving courts ambiguous terms to interpret. Do these laws violate the non-delegation doctrine?

I argue that there’s nothing about the doctrine that exempts delegation to judges. But not all such delegations are unconstitutional. The traditional non-delegation doctrine is relaxed when Congress delegates into an area that’s within, or “interlinked with,” power that the delegate already has. This doctrine, which I call “the Inherent-Powers Corollary,” is central to understanding non-delegation.

Applying the Inherent-Powers Corollary to the judiciary comes down to determining what exact powers federal courts have. The inherent-powers perspective provides interesting insights into the constitutional foundations of the Erie doctrine. It also connects the non-delegation doctrine with the debate over the scope of federal common law. Federal courts’ lawmaking powers include the power to make procedural rules, to make law in areas of “strong federal interest,” to create statutory defenses and remedies, and to engage in ordinary statutory interpretation. (Non-delegation arguments in the statutory con-text thus overlap with arguments about the permissibility of certain kinds of statutory interpretation.) It turns out that even under fairly restrictive views of federal common law, federal courts’ lawmaking powers are extensive enough to save a great many — but not all — delegations.

Keywords: non-delegation, courts, federal common law, Sherman Act, RFRA, Alien Tort Statute, Armed Career Criminal Act

Suggested Citation

Volokh, Alexander (Sasha), The Inherent-Powers Corollary: Judicial Non-Delegation and Federal Common Law (August 7, 2015). Available at SSRN: or

Alexander (Sasha) Volokh (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-5225 (Phone)
404-727-6820 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics