Defeating the Executive Nondelegation Doctrine
Administrative Law Review Accord, Forthcoming
12 Pages Posted: 16 Jul 2019
Date Written: February 11, 2019
The Supreme Court has held that Congress may delegate discretion to other branches of government so long as it is limited by some “intelligible principle.” Applying this standard, the Court has upheld delegations of authority to executive officials to make important decisions based on such vague and indeterminate factors as the public interest, fairness, or reasonableness. The Court’s refusal to seriously scrutinize such effectively standardless delegations prevents the non-delegation doctrine from fulfilling its important functions.
Congress can preclude future non-delegation challenges by amending the Dictionary Act to establish a default rule of statutory construction providing that, unless a statute provides otherwise, any delegation of regulatory authority to federal officials outside the legislative branch shall be exercised in the public interest, so as to promote justice and any other purposes of the underlying statutory provision being implemented. These broad considerations arguably should already be implicit in federal laws. Such a background rule of statutory interpretation would limit otherwise potentially overbroad grants of statutory discretion by incorporating restrictions sufficient to satisfy the Supreme Court’s requirements.
Keywords: nondelegation, separation of powers, discretion, constitutional law, statutory interpretation, default rules
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