70 Pages Posted: 11 Jun 2019 Last revised: 15 Aug 2019
Date Written: May 13, 2019
The U.S. Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Today, however, the foremost source of rules governing private conduct at the federal level is not Congress, but administrative agencies. The U.S. Code is replete with provisions authorizing agencies to issue regulations carrying the force of federal law, a fact about which the federal judiciary seems largely unconcerned. But this was not always so. Prior to its New-Deal era jurisprudential shift, the U.S. Supreme Court at least purported to take seriously the Nondelegation Doctrine, a principle of constitutional law holding that Congress violates the separation of powers when it delegates authority so open-ended as to be essentially “legislative” in nature. However, since the mid-1930s, the Court, while never explicitly abandoning the Nondelegation Doctrine, has effectively weakened it to the point of irrelevancy.
Here, I argue that the Nondelegation Doctrine has a firm foundation in the Constitution’s original meaning. While several commentators have undertaken similar projects, I contribute to existing literature by compiling the scattered historical evidence into a single comprehensive account, including a considerable amount of evidence that seems to have been overlooked in prior scholarship; and by responding to historical analyses expressing the contrary view. I then devise a historically-grounded judicial test for determining whether an unlawful delegation has occurred. Next, I present an argument in favor of the Nondelegation Doctrine based on constitutional structure and policy considerations. Finally, in recognition of the potential disruption a revived Nondelegation Doctrine would present for our system of government, I propose and evaluate a few compromise approaches in which courts would enforce a limited form of the Nondelegation Doctrine without a total upheaval of the modern administrative state.
Keywords: separation of powers, regulation, nondelegation, delegation, constitutional
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