As-Applied Nondelegation

43 Pages Posted: 15 Feb 2017 Last revised: 15 Jun 2018

See all articles by Ilan Wurman

Ilan Wurman

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: April 23, 2017

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

Suggested Citation

Wurman, Ilan, As-Applied Nondelegation (April 23, 2017). 96 Texas Law Review 975 (2018), Available at SSRN: https://ssrn.com/abstract=2917275

Ilan Wurman (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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