12/18/2019

The conservative majority on the Roberts Court is likely to restore nondelegation doctrine

"For these reasons, the only effective way to reduce the flow of law-making power to the executive branch is to force Congress to return to the role that the Framers intended — that is, to make the key decisions for society, without delegating these decisions to the agencies of the executive branch.

That is what the nondelegation doctrine is intended to do — limit the ability of Congress to delegate its lawmaking power by invalidating laws that confer power on administrative agencies without the necessary limitations.

Yes, it is conceptually difficult; that’s why in the 231 years since the ratification of the Constitution the Supreme Court has invoked the nondelegation doctrine only twice, both in in 1935. Yet at this point it must be done. As long as Congress is unwilling or unable to carry out its constitutional role, the Court must either step in to re-establish the constitutional structure or stand by as decisions that should be made by Congress are given over to unelected officials of the administrative state."