Towards Nondelegation Doctrines

59 Pages Posted: 29 Mar 2022

See all articles by Chad Squitieri

Chad Squitieri

The Catholic University of America's Columbus School of Law

Date Written: February 10, 2022

Abstract

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each corresponding to one of Congress’ distinct powers. Adopting such an approach can lessen the risk that reviving the nondelegation principle – a task the current Supreme Court has expressed an interest in taking on – will result in a complete reworking of the modern administrative state.

Keywords: Nondelegation, Congress, legislative, administrative law

Suggested Citation

Squitieri, Chad, Towards Nondelegation Doctrines (February 10, 2022). Missouri Law Review, Vol. 86, No. 4, 2022, Available at SSRN: https://ssrn.com/abstract=4032171

Chad Squitieri (Contact Author)

The Catholic University of America's Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

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