The Judicial Nondelegation Doctrine

Abstract

“Nondelegation doctrine.” Lawyers know it as the rule barring Congress from delegating power to other branches of government. The doctrine, however, has another side—one that applies to the judiciary. This aspect of the doctrine holds that courts may not delegate judicial power to other branches of government. Nonetheless, courts do precisely that. And they do it thousands of times each and every day. Judges empower non-judicial actors to do everything from making legal findings and rendering sentences to resolving custody disputes and setting probation conditions.

This Article is the first to explore the constitutionality of these kinds of delegations. To that end, this piece presents an original dataset of more than one thousand judicial nondelegation challenges. Reviewing these cases will illustrate the scope of judicial delegations, the problems with current case law, and the need for a clear rule to guide courts in delegating judicial power. This Article concludes by arguing that courts should look to the Intelligible Principle Standard for such a guiding rule.