Toward a Non-Delegation Doctrine That (Even) Progressives Could Like
American Constitution Society Supreme Court Review, Vol.3, p. 211, 2019
43 Pages Posted: 29 Feb 2020
Date Written: February 26, 2020
The Supreme Court’s decision last year in Gundy v. United States has further invigorated the debate about the non-delegation doctrine — a debate that was already percolating as part of the broader recent reexamination of the administrative state. That debate needs to include a progressive vision of a strengthened non-delegation principle. The hard fact is that five justices have now signaled at least their willingness to reconsider the traditionally deferential variant of that doctrine, with three of those justices on record as favoring a significant tightening up. Whatever progressives may think about the merits of that traditional variant and its accommodation of the administrative state, a fundamental reconsideration of the non-delegation principle is afoot. Progressives must offer their own vision of what such a reconsideration might look like.
This article suggests tentative directions for that vision. Relying on fragments of doctrine from prior non-delegation opinions, it suggests that progressives should consider proposing that non-delegation challenges focus on both the personal liberty implications of a given delegation and on the extent to which the delegation in question involves a grant of power that the executive already shares to some degree. A reformulated doctrine resting on these principles contains several advantages. First, it finds support in the caselaw — some of it authored by progressive justices otherwise committed to a vigorous administrative state. Second, it may attract the support of a majority coalition comprised of progressives, conservatives (most notably Justice Gorsuch) who are committed to a robust understanding of personal liberty, and, for institutional reasons, Chief Justice Roberts. A consensus position resting on these principles might well satisfy the current push for a strengthened doctrine. Finally, and perhaps most fundamentally, this vision respects progressive commitments to individual liberty while according maximum latitude to the regulatory state progressives also seek to defend.
But regardless of the acceptability of this tentative proposal, progressives must join issue on the possible contours of a reformulated non-delegation doctrine. They no longer have the luxury of simply defending the status quo and hoping for the best.
Keywords: non-delegation, Gundy, intelligible principle
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