Into the Multiverse: Replacing the Intelligible Principle Standard With a Modern Multi-Theory of Nondelegation

54 Pages Posted: 12 Mar 2021

See all articles by Cody Milner

Cody Milner

George Mason University, Antonin Scalia Law School

Date Written: January 7, 2020

Abstract

Following the split decision in Gundy v. United States, the Supreme Court now appears ready to reconsider the wisdom of the intelligible principle doctrine in the context of nondelegation. Over the past century, the intelligible principle has devolved into an unworkable standard; however, any new standard must grapple with the difficulty of creating a one-size-fits-all test for nondelegation. This Comment proposes a different path and advocates for the creation of a tripartite “Multi-Theory” of three separate nondelegation inquiries, grounded in a Youngstown-esque structural separation of categorical powers.

Keywords: Nondelegation, Intelligible Principle, Gundy, Youngstown, Gorsuch

Suggested Citation

Milner, Cody, Into the Multiverse: Replacing the Intelligible Principle Standard With a Modern Multi-Theory of Nondelegation (January 7, 2020). 28 George Mason L. Rev. 395 (2020), Available at SSRN: https://ssrn.com/abstract=3748011

Cody Milner (Contact Author)

George Mason University, Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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