The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Several justices on the Supreme Court are interested in reviving the nondelegation doctrine. Three justices joined Justice Gorsuch's Gundy dissent calling for a nondelegation revival, and two other justices have expressed at least some support for the endeavor.
Precisely how to revive the nondelegation doctrine is an interesting question. There is an active academic debate on what lessons can or should be drawn from the founding era, and serious efforts to develop judicially manageable standards for implementing a limit on legislative delegation.
Two recent papers on SSRN suggest there are some lessons to be learned from the states. Given the interest in the nondelegation doctrine among VC readers, I thought I would flag these two papers.
Nondelegation in the States by Benjamin Silver.
American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine's disparate and varied applications.
Finally, the article argues affirmatively that the Supreme Court ought to consult state nondelegation jurisprudence when it revives the federal nondelegation doctrine. The states' experience counsels important lessons for the federal doctrine. For nondelegation supporters, state nondelegation indicates that a strong doctrine may require revising vast expanses of public law, especially the separation of powers. As a result, a revived doctrine may prove difficult to administer, though in a way few have recognized. Fortunately, where the nondelegation doctrine might overreach into other areas of public law, relatively straightforward doctrinal guardrails can be established so that a strong doctrine doesn't prove to be an obstacle to effective governance.
Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We're Expecting by Daniel Walters (forthcoming in the Emory Law Journal).
The nondelegation doctrine theoretically limits Congress's ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may all change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court's longstanding "intelligible principle" standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill in details or find facts triggering policies, which can. Whether observers' view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects it to be highly consequential.
While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This article offers a more data-driven evaluation of what implementation of the Gundy dissent's line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, I show that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than are states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Court actually does over a series of cases, not in what it says it is going to do. Moreover, it suggests significant limitations in the ability of the Gundy dissent's approach to provide any ex ante guidance to Congress, the lower courts, or even future Supreme Courts about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.