Prof. Philip Hamburger (Columbia) on the Nondelegation Doctrine

Prof. Hamburger has a very interesting article on this, Nondelegation Blues; the abstract:

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court's answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

This Article examines the Constitution's treatment of the problem. Whereas other scholarship tends to focus narrowly on a single concept, whether delegation or vesting, this piece takes a more ecumenical approach. It uncovers layers of relevant concepts, showing how each contributes to the Constitution's vision.

For example, it is necessary to consider the principles of consent, different powers, separation, and exclusivity before one gets to delegation. Although the Framers voted against permitting any congressional delegation, they did not rest content with delegation language. Instead, they drafted the Constitution in terms of vesting. But not just vesting, for Constitution says that its powers "shall be vested." Far from merely a transfer of the powers, this was an express declaration of their mandatory location.

The Article thereby goes far beyond existing scholarship in showing how fundamental principles, drafting assumptions, and text were all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination of underlying principles, framing assumptions, and text.

The Article also shows the refinement of the Constitution's approach. The Constitution's sophistication has not been much appreciated in the scholarly literature. But it will be seen that the Constitution was anything but crude in barring transfers of powers. For example, it adopted the separation of powers not in an absolute way, but as a default principle.

While it precluded the transfer of legislative power, it left much room for executive rulemaking. Even though its powers were externally exclusive, they were not always exclusive internally—that is, some of them could be subdelegated within the branches of government. And the eternally exclusive powers permitted much nonexclusive authority to be exercised under those powers. Wherever one stands on the transfer of legislative power, these distinctions are important and need to be recognized as qualifying the larger point about the location of legislative power.

Not merely a technical doctrinal question about the distribution of powers, the problem here is bound up with more visceral social and political values. Judges and academics tend to discuss it if it were merely a matter of doctrine, unconnected to larger questions of expanded suffrage and untainted by unwholesome animosities. But this fails to acknowledge the underlying legacy of prejudice and the enduring reality of discrimination and disenfranchisement.