Delegation to Nonexperts

Abstract

When a legislature delegates authority to an agency or a private party, the
delegate typically has expertise in the subject matter of the delegation. But, while
delegation to experts is the rule, a legislature can also delegate authority to an
institution without expertise in the areas it regulates. This Essay evaluates the
phenomenon of delegation to nonexperts. It concludes that the accountability concerns
that infect delegation generally are more acute in the context of nonexperts.
Conversely, the self-dealing concerns associated with private delegates are minimal
for nonexpert delegates. Finally, the risk is considerable that nonexpert delegation will
lead to arbitrary regulation. These conclusions should inform how our legislatures
delegate authority and how courts review actions taken by nonexpert delegates.

Keywords: delegation, separation of powers, administrative law, administrative agencies