Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State

58 Pages Posted: 4 Mar 2016 Last revised: 15 Mar 2016

See all articles by Ronald A. Cass

Ronald A. Cass

Center for the Rule of Law; Cass & Associates, PC; Boston University School of Law; George Mason University - Antonin Scalia Law School, Faculty

Date Written: March 2, 2016

Abstract

The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.

If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.

Keywords: delegation doctrine, discretionary authority, intelligible principle, Justice Samuel Alito, Justice Clarence Thomas, legislative power, modern administrative state, separation of functions, separation of power, U.S. Constitution

JEL Classification: K23

Suggested Citation

Cass, Ronald A., Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State (March 2, 2016). George Mason Legal Studies Research Paper No. LS 16-07, Available at SSRN: https://ssrn.com/abstract=2741208 or http://dx.doi.org/10.2139/ssrn.2741208

Ronald A. Cass (Contact Author)

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