A Nondelegation Doctrine the Court Can Believe In

Contact Your Elected Officials

The Constitutionโ€™s original meaning provides a judicially manageable line between constitutional and unconstitutional delegations.

After several generations in which the nondelegation doctrine has been largely ignored, the Supreme Court has given hints that it may start to enforce the doctrine once again. This change in constitutional interpretation could have enormous consequences, because a strong nondelegation doctrine poses a significant check on the excesses of the administrative state. But enforcing the nondelegation doctrine raises a problem that has made even those sympathetic to the doctrine hesitant about applying itโ€”the view that there is no clear way to distinguish between constitutional and unconstitutional delegations of policymaking authority to the executive. Here, I want to propose a solution to that problem (download file or see PDF below) that would allow for a judicially manageable nondelegation doctrine.

The nondelegation doctrine holds that Congress cannot delegate its legislative power to the executive branch. The legislative power is normally identified with policymaking discretion. Thus, the doctrine limits Congress from assigning policymaking to administrative agencies.

It was 85 years ago that the Supreme Court used the doctrine to strike down important delegations of legislative power in a few cases during the New Deal. But the doctrine fell prey to the New Deal judicial revolution. With the appointment of New Deal justices, the Supreme Court started to apply the doctrine extremely leniently to allow enormous delegations of policymaking discretion to the executive. Since the New Deal, no delegations reviewed by the Courtโ€”and there have been manyโ€”have been struck down as unconstitutional.

This relaxation of the doctrine has been important, since it has allowed the administrative state to grow. If a strict nondelegation doctrine were enforced, Congress would have to pass laws rather than simply having agencies enact rules, as is now the standard practice. This requirement would be significant because divided government (which usually exists) means that fewer and more moderate regulations would be passed if Congress had to enact them.

But the Supreme Court has now indicated that it may be willing to reinvigorate the nondelegation doctrine. In the 2019 case of Gundy v. United States, Justice Gorsuch wrote a dissent, joined by two other justices (Roberts and Thomas), advocating a return to a strict nondelegation doctrine. In a separate opinion, Justice Alito stated that he would be willing to revisit the doctrine in a suitable case, and in a subsequent opinion, Justice Kavanaugh expressed similar sentiments. Thatโ€™s five justices, and with the addition of originalist Justice Amy Coney Barrett, there is a real chance of establishing a strong nondelegation doctrine.

By Mike Rappaport

Read Full Article on Law & Liberty

About Law & Liberty

Law & Libertyโ€™s focus is on the classical liberal tradition of law and politics and how it shapes a society of free and responsible persons.

This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to examining the first principles of a free society as they appear in law, history, political thought, and other aspects of culture.

A Two Tiered and Categorical Approach to the Nondelegation Doctrine by Michael B. Rappaport1

a-two-tiered-and-categorical-approach-to-the-nondelegation-doctrine

The Thinking Conservative
The Thinking Conservativehttps://www.thethinkingconservative.com/
The goal of THE THINKING CONSERVATIVE is to help us educate ourselves on conservative topics of importance to our freedom and our pursuit of happiness. We do this by sharing conservative opinions on all kinds of subjects, from all types of people, and all kinds of media, in a way that will challenge our perceptions and help us to make educated choices.

Flagged for Burning

Trump ordered AG to enforce laws against flag desecration focusing on flag burning linked to violent crimes, property destruction or other illegal activities.

Why Illinois Needs Trump NOW!

Gov. J.B. Pritzker and Mayor Brandon Johnson told President Trump โ€œDonโ€™t come to Chicago!โ€ to reduce crime or to help clean up the trash in the city.

Donald Trumpโ€™s Appointments Are Being Obstructed

Donald Trump is the only President in history that has had recess appointments blocked by his own party!

Trump Flag-Burning Ban: Unconstitutional, Un-American, and Trifling

Trump signed an EO to criminalize the burning of the American flag โ€” the right to do which having already been adjudicated by the highest court in the land.

Using True Facts of History to Determine What is Right and What is Wrong

The amount of time separating a human act from a truthful description of it is not as important as the veracity of historians bringing it to light.

What We Know So Far About Minnesota School Shooting

A shooter killed two children and injured 17 others when he opened fire during Mass at a Minneapolis Catholic school on Aug. 27, officials said.

RFK Jr. Calls on Medical Schools to Ramp Up Nutrition Education

Health Sec. Robert F. Kennedy Jr. and Education Sec. Linda McMahon are calling on medical schools to provide nutrition education to students.

2 Children Killed, 17 Other Injured in Minneapolis Catholic Church Shooting

Two children were killed and 17 other people were injured at a Catholic church and school in Minneapolis on Aug. 27, officials said.

Attorneys for Jack Smith Respond to Federal Watchdog Probe

Attorneys for former special counsel Jack Smith responded to a federal watchdog investigation over potential Hatch Act violations, saying the probe is โ€œunfounded.โ€

Trumpโ€™s 50 Percent Tariff on India Takes Effect

President Trumpโ€™s additional 25% tariff on India became effective at midnight on Aug. 27, bringing the total rate to 50% on many imports entering the US.

RFK Jr. Says HHS Will Disclose Causes of Autism in September

During a cabinet meeting Secretary of Health and Human Services Robert F. Kennedy Jr. vowed to announce the causes of autism by September.

At Trump Cabinet Meeting, NTD Reporter Describes Being Mugged, Pistol-Whipped in DC

At a White House Cabinet meeting, a reporter with The Epoch Timesโ€™ sister media outlet recounted getting robbed at gunpoint in the District of Columbia.

OMB Head: Trump Admin Eliminating 30 Old Regulations for Each New One

The Trump administration has repealed 30 regulations for each new regulation, Office of Management and Budget Director Russ Vought announced.
spot_img

Related Articles