Eight Futures of the Nondelegation Doctrine

14 Pages Posted: 10 Jan 2020 Last revised: 13 May 2020

See all articles by Andrew Coan

Andrew Coan

University of Arizona, James E. Rogers College of Law

Date Written: May 12, 2020


Among close observers of the United States Supreme Court, there is a palpable sense of anticipation. Conservatives eagerly anticipate a sweeping constitutional revolution. Liberals regard this prospect with mounting dread. Using the nondelegation doctrine as an illustrative example, this Essay argues that both sides should temper their expectations.The reason is straightforward, if frequently overlooked: The Supreme Court is a tiny institution capable of deciding only a small fraction of the constitutional questions generated by the operation of the U.S. government. In many of the most important constitutional domains, the limits of judicial capacity strongly constrain the Court to defer to the political process, to cast its decisions in the form of hard-edged categorical rules, or both. Since categorical rules are frequently clumsy and poorly matched to their underlying purposes, the limits of judicial capacity create a strong hydraulic pressure on the Court to employ deferential doctrines like rational basis review that effectively cede the field to other institutional actors.

Keywords: Nondelegation doctrine, judicial capacity, administrative law, constitutional law, administrative state, judicial review, judicial deference, rules, standards, Justice Gorsuch, Gundy v. United States

Suggested Citation

Coan, Andrew, Eight Futures of the Nondelegation Doctrine (May 12, 2020). 2020 Wisconsin Law Review 141, Arizona Legal Studies Discussion Paper No. 20-01, Available at SSRN: https://ssrn.com/abstract=3516976

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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