Nondelegation and Judicial Aggrandizement
15 Elon L. Rev. 1 (2023)
49 Pages Posted: 8 Jun 2022 Last revised: 6 Feb 2023
Date Written: May 25, 2022
Opponents of the administrative state have chosen doctrine, not legislation, as their preferred tool to restructure administrative governance in the United States. As a result, courts may soon decide that the nondelegation doctrine is insufficiently robust. While the justification for giving teeth to the nondelegation doctrine typically rests on trying to democratize the administrative state or to encourage Congress to speak more precisely, creating a robust nondelegation doctrine would, however, only empower the courts at Congress’s expense. This article argues that making a robust nondelegation doctrine would be an example of judicial self-aggrandizement. To explain why the Supreme Court would only be empowering itself, this article describes judicial aggrandizement and argues that it is best understood as a type of institutional change motivated by ideas. Drawing on original research on William Howard Taft and his decision in J.W. Hampton, Jr. Co. v. United States, this article demonstrates that ideas about judicial empowerment structured the initial shifts from a separation-of-powers system into a separation-of-powers doctrine that courts must enforce. Taft successfully used Supreme Court decisions to aggrandize the Supreme Court and the judiciary as a whole. The same ideas continue to structure the courts’ role in the constitutional system. Creating a robust nondelegation doctrine requires endorsing the same ideas and further entrenching itself as the final arbiter over core questions of constitutional self-governance. A robust nondelegation doctrine would be yet another example of judicial self-aggrandizement.
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