Bring on the Chicken and Hot Oil: Reviving the Nondelegation Doctrine for Congressional Delegations to the President

Authors

Loren Jacobson

Document Type

Article

Abstract

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States has essentially created a fiction: when Congress provides as part of the delegation “intelligible principles” that in some way cabin the discretion of the decisionmaker to whom it has delegated, the decisionmaker is no longer “legislating,” but merely “executing” the law, as the executive branch may do.

In the entire history of constitutional law, the Supreme Court has only twice used the “intelligible principle” standard to invalidate congressional delegations to the executive, and both of those decisions came down in 1935. As Cass Sunstein so aptly put it twenty years ago, the conventional nondelegation doctrine has had “one good year, and 211 bad ones (and counting).” Now, of course, it has had 231 bad years, making it practically moribund.