Taking Delegations Seriously

36 Pages Posted: 30 Mar 2022

See all articles by Luke Wake

Luke Wake

Pacific Legal Foundation

Date Written: December 15, 2021


The non-delegation doctrine has become a flashpoint in COVID-19 litigation since March, 2020, as both state and federal authorities sought to exercise unprecedented emergency powers to control the spread of SARS-COV-2. This article examines the failure of state courts to give serious consideration of non-delegation arguments in the face of broad delegations of police powers, and the countervailing approach that the U.S. Supreme Court has taken in stressing the major questions doctrine as a bulwark against excessive delegations. In addition to examining the perverse implications of an impotent non-delegation doctrine, this article argues that the principle argument against invalidating unfettered delegations is overstated and can only potentially justify emergency orders on a short-term basis until such time as the Legislature is capable of reconvening.

Keywords: non-delegation; separation of powers

Suggested Citation

Wake, Luke, Taking Delegations Seriously (December 15, 2021). NYU Journal of Law & Liberty, Vol. 15, No. 3, 2022, Available at SSRN: https://ssrn.com/abstract=4034816 or http://dx.doi.org/10.2139/ssrn.4034816

Luke Wake (Contact Author)

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States

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