Pyrrhic Political Penalties: Why the Public Would Lose Under the 'Penalty Default Canon'
13 Pages Posted: 23 Feb 2004
In their forthcoming article, "The Penalty Default Canon," Scott Baker and Kim Krawiec have proposed a provocative new formulation of the nondelegation doctrine that would have courts strike down statutory delegations motivated by Congress's desire to avoid responsibility for resolving policy disputes. Baker and Krawiec, skeptical of any method for evaluating the desirability of a policy outcome, posit that the outcome of the legislative process when Congress is not motivated by a desire to hide political responsibility is presumptively good. This response questions that presumption. Because of the insulation of courts and agencies from direct political pressure, and the deliberative capacity of those institutions, I conclude that they will reach outcomes preferable to those likely to come out of the legislature in those situations where Congress delegates to avoid political responsibility.
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