Nondelegation for the Delegators

Abstract

Although five Supreme Court justices have expressed interest in revitalizing the nondelegation doctrine, there are reasons to suspect the Court is unlikely to do much to curb delegation in the coming years. Consequently, Congress will continue to face myriad incentives to delegate broad statutory authority to federal agencies and few incentives to revisit those broad delegations. And the president and federal agencies will continue to leverage such delegated authority. It will be difficult to change the legislative process (or constitutional doctrine) to decrease the breadth of statutory delegation to federal agencies.

Insofar as delegation is a problem, perhaps it is time to focus more on its causes. Accordingly, Congress needs to return to a regular practice of legislating and, in so doing, revisit prior delegations of authority to federal agencies. To encourage such legislative action, Congress should engage in regular reauthorization of federal agencies and programs and should take seriously its foundational rule against appropriation without authorization. Such action would not cure all that ails the modern administrative state, but it would ensure administrative action has greater democratic legitimacy and could induce the legislature to engage more fully in the question of what authority federal agencies should have.

Keywords: nondelegation, reauthorization, Chevron deference, appropriations