Hiding Nondelegation in Mouseholes

62 Administrative Law Review 19 (2010)

BYU Law Research Paper No. 21-27

50 Pages Posted: 6 Dec 2021

See all articles by Jacob Loshin

Jacob Loshin

Yale Law School

Aaron L. Nielson

Brigham Young University - J. Reuben Clark Law School

Date Written: January 3, 2010

Abstract

The Supreme Court has begun creating an exception to ordinary rules of deference known as the elephants-in-mouseholes doctrine. Under this doctrine, courts do not defer to an agency's interpretations of a statute where the policy is significant but the statutory hook is relatively insignificant. This article examines the emergence of the elephants-in-mouseholes doctrine and defends it as a good-faith effort to address nondelegation concerns. Nonetheless, drawing on principles of textualism, the article also explains why the doctrine may be difficult to apply consistently.

Keywords: administrative law, nondelegation, Chevron, deference, textualism

Suggested Citation

Loshin, Jacob and Nielson, Aaron, Hiding Nondelegation in Mouseholes (January 3, 2010). 62 Administrative Law Review 19 (2010), BYU Law Research Paper No. 21-27, Available at SSRN: https://ssrn.com/abstract=3977041

Jacob Loshin

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Aaron Nielson (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
61
Abstract Views
284
rank
500,278
PlumX Metrics