As-Applied Nondelegation

Abstract

The nondelegation doctrine is powerful — so powerful that the Supreme Court is afraid to use it. The doctrine holds that Congress cannot delegate its legislative power to agencies. If the Court were to enforce the doctrine, entire statutory provisions — and perhaps entire statutory schemes — would be at risk of invalidation.

Yet there is no need for such a powerful, facial doctrine. Nondelegation can be refashioned to be as-applied. An as-applied nondelegation doctrine would work by treating statutory ambiguities, just as Chevron does, as implicit delegations — each of which can be independently assessed for a nondelegation violation. This approach would explain the so-called “major questions” exception to Chevron, but without any of the existing doctrine’s flaws.

The implications of an as-applied nondelegation doctrine are numerous and highly attractive. It would replace the major questions doctrine, which the literature has rightly rejected, with a rigorous and coherent theory. It would better serve nondelegation interests by dramatically reducing any adverse consequences from finding a violation of the nondelegation doctrine. Finally, an as-applied nondelegation doctrine could be determinative in a handful of upcoming and important cases.

Keywords: Administrative law, Chevron, delegation, nondelegation, implicit delegation, as-applied, facial, as-applied nondelegation, non-delegation, Brown & Williamson, MCI, Net Neutrality, Open Internet Order, Major Questions