Pragmatic Formalism, Separation of Powers, and the Need to Revisit the Nondelegation Doctrine

70 Pages Posted: 19 Jul 2019

Date Written: July 17, 2019


In this Article, the authors criticize the Supreme Court’s all-but-total abandonment of the nondelegation doctrine, because it undermines explicit constitutional directives and structure, and because it dangerously empowers the Presidency. Indeed, the nation’s experience over the last three years should make us very concerned about an atrophied Congress and an overly empowered Executive. The Article responds to all of the functionalist scholarly arguments for abandoning the nondelegation doctrine, focusing on the constitutional and political dangers inherent in such a mode of analysis. But the Article recognizes the difficulty of formalistically distinguishing “legislative” from “executive” power, at least in close cases. It therefore categorically rejects strict formalist approaches to the distinction. Instead, the authors replace both functionalist and formalist analyses with what they describe, seemingly in an oxymoronic manner, as “pragmatic formalism”. The goal of this analytical model is to preserve a formal definitional analysis that avoids any direct balancing that would ever allow “legislative” power to be delegated to the Executive branch. But in close cases, it seeks to define the concepts in terms of the functions for which they were originally intended. The Framers chose to create the Executive branch because of their common sense understanding that Congress was too unwieldy a lawmaking body to make on-the-spot decisions when they are required. Thus, the authors impose two prerequisites for finding a power to be “executive”: First, in the authorizing law Congress must have made a “political commitment” that allows the voters to judge their representatives on the basis of how they voted on the law. An empty, unguided delegation will never satisfy this requirement. Second, the exercise of power in question must be deemed one that requires the kind of common sense, on-the-spot decision making for which the Executive branch was created in the first place. Finally, the Article tackles the difficult problem of unforeseen emergencies, allowing Congress to vest authority in the Executive to deal with such situations only when certain important legislative/procedural requirements are satisfied.

Keywords: Nondelegation Doctrine, Separation of Powers, Administrative Law, National Emergency Act, Emergencies, Constitutional Law, Functionalism, Formalism

JEL Classification: K10, K19, K30, K39

Suggested Citation

Redish, Martin H. and Pope, Lauren, Pragmatic Formalism, Separation of Powers, and the Need to Revisit the Nondelegation Doctrine (July 17, 2019). Loyola University Chicago Law Journal, Forthcoming, Northwestern Law & Econ Research Paper No. 19-05, Northwestern Public Law Research Paper No. 19-13, Available at SSRN:

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Lauren Pope


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