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The Nondelegation Doctrine and the Structure of the Executive
Froomkin, David B.
Froomkin, David B.
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Abstract
In a series of recent opinions, the Supreme Court has threatened to
transform the nondelegation doctrine into a device for imposing sweeping
limits on congressional authority to empower the regulatory state. But, as a
matter of history and logic, the nondelegation doctrine has a quite different
purpose. This Article argues that the nondelegation doctrine plays an
underappreciated role in constitutional structure: encouraging the
segmentation of executive power. The nondelegation doctrine vindicates the
Article I Vesting Clause by preventing Congress from being divested of its
legislative power. Its purpose is to reinforce Congress’s legislative supremacy
in the realm of ordinary law, not to impede Congress’s ability to achieve
legislative objectives by delegating regulatory authority to administrative
agencies. The nondelegation doctrine accomplishes its distinctly structural
purpose by constraining the delegation of broad powers to the President
directly, a constraint that encourages legislative delegation of regulatory
authority to administrative agencies. The Article explains as a matter of
theory why broad delegations to the President, unlike the delegation of
substantial regulatory authority to administrative agencies, jeopardize
legislative supremacy and hence pose heightened nondelegation concerns,
and it finds strong support for this distinction in the history of nondelegation
decisions. It concludes that the diffuse departmental structure of the modern
administrative state is a testament to the great success of the nondelegation
doctrine, not evidence of its underenforcement. Indeed, the contemporary
push to reinvent the nondelegation doctrine in an indiscriminate way would
turn it into something closer to its opposite, a cudgel against legislative
supremacy rather than its guardian.
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