In the Spring 2020 issue of Regulation magazine, Jonathan Adler and I have a short essay entitled Nondelegation for the Delegators. This essay previews our longer law-review article Delegation and Time, which is forthcoming in the Iowa Law Review and was the subject of a terrific series over at The Regulatory Review earlier this month.
Here’s a teaser from the introduction to our Regulation essay:
In 1935, Justice Benjamin Cardozo complained of “delegation running riot.” Since then, it has only expanded in scope and scale as Congress has, time and again, delegated to administrative agencies the authority to draft, develop, and deploy regulatory regimes governing nearly all aspects of economic life in America. Might this be about to change?
For the first time since Cardozo’s complaint, it appears a majority of justices on the U.S. Supreme Court are prepared to reconsider the limits on congressional delegation of lawmaking authority to administrative agencies. Although the Court has not invalidated a federal statute on nondelegation grounds in over 80 years, it has opened the door to new nondelegation challenges.
Yet, reconsideration of the nondelegation doctrine may not mean much. If the Court’s practice with other revived constitutional doctrines is any guide, it may take more to curb delegation’s reach. In 1995, a Supreme Court majority announced its intent to police the limits of Congress’s Commerce Power, and yet few federal laws have seen their reach constrained. New and unprecedented assertions of federal power have been turned away, but the rest of the U.S. Code has been left intact. In much the same way, a nondelegation revival may target newly enacted outliers without doing much at all to curb those delegations that are already on the books. If delegation is to be curbed, it may have to be stopped at the source: Congress itself.
You can read the full Spring 2020 issue of Regulation here. If you want to read more related to the issue of delegation and time, we recommend the following publications at the end of our essay:
- “Administrative Collusion: How Delegation Diminishes the Collective Congress,” by Neomi Rao. New York University Law Review 90(5): 1463–1526 (2015).
- “Dynamic Legislation,” by Rebecca M. Kysar. University of Pennsylvania Law Review 167(4): 809–868 (2019).
- “Hiding Nondelegation in Mouseholes,” by Jacob Loshin and Aaron Nielson. Administrative Law Review 62(1): 19–68 (2010).
- “‘I’m Leavin’ It (All) Up to You’: Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine,” by Gary Lawson. Cato Supreme Court Review 2018–2019: 31–68.
- Power Without Responsibility: How Congress Abuses People through Delegation, by David Schoenbrod. Yale University Press, 1993.
- Sunset Legislation in the States: Balancing the Legislature and the Executive, by Brian Baugus and Feler Bose. Mercatus Center at George Mason University, 2015.
- “Temporary Legislation,” by Jacob E. Gersen. University of Chicago Law Review 74(1): 247–298 (2007).