Nondelegation in the States

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 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. On one hand, should a revived federal doctrine follow the logic of state nondelegation, key features of American public law may need to be reworked. On the other hand, there is reason to think that a revived doctrine would not present insurmountable obstacles to effective government.

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