Eight Futures of the Nondelegation Doctrine
14 Pages Posted: 10 Jan 2020 Last revised: 13 May 2020
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
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