Nondelegation: A Post-Mortem

Abstract

In an earlier article, Interring the Nondelegation Doctrine,' we advanced the following account of the constitutional law bearing on delegation of federal legislative power. A statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. The standard nondelegation doctrine, which holds that statutory grants of authority "amount to" or "effect" a delegation of legislative power if they are too broad or confer excessive discretion, is no more than a vague and ultimately uncashable metaphor. As it turns out, the standard nondelegation doctrine has no real pedigree in constitutional text and structure, in originalist understandings, or in judicial precedent; nor can plausible arguments from democratic theory or social welfare be marshaled to support it. Larry Alexander and Saikrishna Prakash have written a response that criticizes our account.2 (Although Alexander and Prakash criticize our view, they are noticeably ambivalent about the conventional doctrine.' As we shall see, their arguments commit them to defending a different, radically restrictive account of delegation, one in which any issuance of rules and regulations by the executive branch represents an unconstitutional exercise of legislative power.) Alexander and Prakash make three principal points. First, focusing on one implication of our account -that a delegation of legislative power would occur if federal legislators ceded their de jure legislative powers, such as voting rights, to nonlegislators-they say that our account "elevates form over substance" by permitting "equivalent" results to be produced