Delegation and Original Meaning

94 Pages Posted: 27 Oct 2001  

Gary Lawson

Boston University School of Law

Date Written: October 2, 2001

Abstract

The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.

JEL Classification: K10

Suggested Citation

Lawson, Gary, Delegation and Original Meaning (October 2, 2001). Virginia Law Review, Vol. 88, April 2002. Available at SSRN: https://ssrn.com/abstract=288433 or http://dx.doi.org/10.2139/ssrn.288433

Gary Lawson (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)

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