Consent of the Governed: A Constitutional Norm That the Court Should Substantially Enforce

66 Pages Posted: 11 Mar 2020 Last revised: 3 Apr 2020

Date Written: 2020

Abstract

In its early years, the Constitution was understood to bar Congress from delegating its legislative powers, including the power to make rules of private conduct. Yet, full compliance with this constitutional norm grew increasingly difficult as demand for such laws grew. The Supreme Court accommodated this impediment to full judicial enforcement of the original norm in various ways, eventually settling on the notion that Congress does not delegate its legislative powers so long as it states an “intelligible principle” guiding agency rulemaking. This test has, however, proved judicially unmanageable. The upshot is that Congress may freely delegate legislative power to agencies. The Court should now discard the intelligible principle test and adopt a new test that is both judicially manageable and designed to require Congress to shoulder substantial responsibility for federal rules of private conduct. This Article shows how the Court could do so and why it should. The opinions in the recently decided case of Gundy v. United States suggest that a majority of the Justices may well do what they should.

Keywords: Delegation; nondelegation; underenforcement

Suggested Citation

Schoenbrod, David, Consent of the Governed: A Constitutional Norm That the Court Should Substantially Enforce (2020). Harvard Journal of Law and Public Policy, Vol. 43, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3540458

David Schoenbrod (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
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212-431-9205 (Fax)

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