Document Type

Article

Publication Date

11-2019

Abstract

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional terms, the nondelegation doctrine remains alive, and is more manageable and coherent than alternatives recently suggested by Justice Gorsuch in his dissent in Gundy v. United States, even if the Court has almost never invoked the doctrine to strike down legislation authorizing lawmaking by executive officers. The Supreme Court’s infrequent use of the doctrine to invalidate legislation—even when these laws impose minimal constraints on executive decision-making—is not a function of judicial confusion or of the Court’s abandonment of the doctrine. It is instead a function of the doctrine itself being grounded in more than just an intelligible principle test—and of the fact that legislation only infrequently seeks to effectuate grants of authority that reach the extremes on all of the relevant dimensions of delegation.

Publication Citation

167 U. Pa. L. Rev. 1849 (2019).

Share

COinS