Defeating the Executive Nondelegation Doctrine

Administrative Law Review Accord, Forthcoming

FSU College of Law, Public Law Research Paper No. 902

12 Pages Posted: 16 Jul 2019

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: February 11, 2019

Abstract

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

Suggested Citation

Morley, Michael, Defeating the Executive Nondelegation Doctrine (February 11, 2019). Administrative Law Review Accord, Forthcoming; FSU College of Law, Public Law Research Paper No. 902. Available at SSRN: https://ssrn.com/abstract=3292007

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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