Nondelegation in the States

68 Pages Posted: 10 Feb 2021 Last revised: 10 Mar 2021

See all articles by Benjamin Silver

Benjamin Silver

Yale Law School; University of Chicago (Social Thought)

Date Written: December 31, 2020

Abstract

American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine’s disparate and varied applications.

Finally, the article argues affirmatively that the Supreme Court ought to consult state nondelegation jurisprudence when it revives the federal nondelegation doctrine. The states’ experience counsels important lessons for the federal doctrine. For nondelegation supporters, state nondelegation indicates that a strong doctrine may require revising vast expanses of public law, especially the separation of powers. As a result, a revived doctrine may prove difficult to administer, though in a way few have recognized. Fortunately, where the nondelegation doctrine might overreach into other areas of public law, relatively straightforward doctrinal guardrails can be established so that a strong doctrine doesn’t prove to be an obstacle to effective governance.

Keywords: Nondelegation, delegation, states, state courts, sovereignty, separation of powers, administrative law, administrative state, agencies

Suggested Citation

Silver, Benjamin, Nondelegation in the States (December 31, 2020). Available at SSRN: https://ssrn.com/abstract=3758233 or http://dx.doi.org/10.2139/ssrn.3758233

Benjamin Silver (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

University of Chicago (Social Thought) ( email )

Chicago, IL
United States

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