Bill of Rights Nondelegation

61 Pages Posted: 27 Apr 2023 Last revised: 2 Jan 2024

Date Written: December 27, 2023

Abstract

Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly—and rigorously—applying the doctrine in a different context: In litigation concerning various provisions of the Bill of Rights, the Court has enforced a nondelegation principle to constrain the delegation of unfettered discretion to the executive.

The uncovering of a Bill of Rights nondelegation doctrine reveals that, contrary to popular belief, the Court has been actively applying some form of nondelegation for many years. Recognizing a Bill of Rights nondelegation doctrine could have important implications for Bill of Rights jurisprudence writ large. Further, understanding the “Bill of Rights nondelegation doctrine” as a coherent line of cases separate from what this Article calls the “Article I nondelegation doctrine” helps to clarify the connection that some have pointed out between the nondelegation principle and certain parts of the Bill of Rights. From the First and Second Amendments to the Fourth and Fifth Amendments, the Bill of Rights nondelegation doctrine prevents the delegation of unfettered discretion when enumerated rights are at stake.

Keywords: Nondelegation, Constitutional Law, Bill of Rights, Separation of Powers, First Amendment, Second Amendment, Fourth Amendment, Fifth Amendment, Free Speech, Void for Vagueness, Seventh Amendment, Discretion, Legislative Power, Administrative Law, Article I

Suggested Citation

Nachmany, Eli, Bill of Rights Nondelegation (December 27, 2023). 49 BYU Law Review 513 (2023), C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 23-04, Available at SSRN: https://ssrn.com/abstract=4428109

Eli Nachmany (Contact Author)

Covington & Burling LLP

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