Dimensions of Delegation

43 Pages Posted: 20 Dec 2019 Last revised: 9 Apr 2020

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Law School

Date Written: November 1, 2019

Abstract

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional terms, the nondelegation doctrine remains alive, and is more manageable and coherent than alternatives recently suggested by Justice Gorsuch in his dissent in Gundy v. United States, even if the Court has almost never invoked the doctrine to strike down legislation authorizing lawmaking by executive officers. The Supreme Court’s infrequent use of the doctrine to invalidate legislation—even when these laws impose minimal constraints on executive decision-making—is not a function of judicial confusion or of the Court’s abandonment of the doctrine. It is instead a function of the doctrine itself being grounded in more than just an intelligible principle test—and of the fact that legislation only infrequently seeks to effectuate grants of authority that reach the extremes on all of the relevant dimensions of delegation.

Keywords: administrative law, constitutional law, legislative power, delegation, nondelegation doctrine, congressional grants of rulemaking authority, regulatory decisionmaking, agency discretion, executive action, separation of powers, Supreme Court, judicial analysis, spatial mapping

Suggested Citation

Coglianese, Cary, Dimensions of Delegation (November 1, 2019). 167 U. Pa. L. Rev. 1849 (2019); U of Penn Law School, Public Law Research Paper No. 19-42; C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 19-01. Available at SSRN: https://ssrn.com/abstract=3506913

Cary Coglianese (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)

HOME PAGE: http://www.law.upenn.edu/coglianese

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