Nondelegation for the Delegators

6 Pages Posted: 10 Sep 2020 Last revised: 15 Sep 2020

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: March 1, 2020

Abstract

Although five Supreme Court justices have expressed interest in revitalizing the nondelegation doctrine, there are reasons to suspect the Court is unlikely to do much to curb delegation in the coming years. Consequently, Congress will continue to face myriad incentives to delegate broad statutory authority to federal agencies and few incentives to revisit those broad delegations. And the president and federal agencies will continue to leverage such delegated authority. It will be difficult to change the legislative process (or constitutional doctrine) to decrease the breadth of statutory delegation to federal agencies.

Insofar as delegation is a problem, perhaps it is time to focus more on its causes. Accordingly, Congress needs to return to a regular practice of legislating and, in so doing, revisit prior delegations of authority to federal agencies. To encourage such legislative action, Congress should engage in regular reauthorization of federal agencies and programs and should take seriously its foundational rule against appropriation without authorization. Such action would not cure all that ails the modern administrative state, but it would ensure administrative action has greater democratic legitimacy and could induce the legislature to engage more fully in the question of what authority federal agencies should have.

Keywords: nondelegation, reauthorization, Chevron deference, appropriations

Suggested Citation

Adler, Jonathan H. and Walker, Christopher J., Nondelegation for the Delegators (March 1, 2020). Regulation, Vol. 43, No. 1, pp. 14-19, 2020, Ohio State Legal Studies Research Paper No. 571, Available at SSRN: https://ssrn.com/abstract=3690114

Jonathan H. Adler

Case Western Reserve University School of Law ( email )

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216-368-2086 (Fax)

HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

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Christopher J. Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

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