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"Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002)

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"Interring the Nondelegation Doctrine" (2002) is an article by American lawyers and professors Eric A. Posner and Adrian Vermeule arguing that the nondelegation doctrine is a legal fiction and that congressional delegations of authority are never delegations of legislative power.[1]

HIGHLIGHTS
  • Source: The University of Chicago Law Review, Volume 69, Number 4, Autumn 2002
  • Abstract: Posner and Vermeule's article argues that the nondelegation doctrine is a legal fiction, claiming that when Congress grants statutory authority to an agent, the power exercised by that agent is necessarily executive and not legislative. Thus, there is no constitutional principle of nondelegation that Congress could violate in the first place.

    • Authors

    Eric A. Posner

    Eric A. Posner is an American lawyer and professor. As of December 2017, he was the Kirkland and Ellis Distinguished Service Professor of Law and the Arthur and Esther Kane Research Chair at the University of Chicago Law School. According to his faculty profile page, Posner's research interests include international law and constitutional law. Below is a summary of Posner's education and career:[2]

    • Academic degrees:
      • B.A. and M.A. in philosophy (1988), Yale University, New Haven, Connecticut
      • J.D. (1991), Harvard Law School, Cambridge, Massachusetts
    • Law professor and legal scholar
    • Fellow of the American Academy of Arts and Sciences
    • Member of the American Law Institute

    Adrian Vermeule

    Adrian Vermeule is an American lawyer and professor. As of December 2017, he was the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School in Cambridge, Massachusetts. According to his faculty profile page on the Harvard Law School website, Vermeule's areas of interest include administrative law, constitutional law, legislation, and national security law. Below is a summary of Vermuele's education and career:[3]

    • Academic degrees:
      • B.A. (1990), Harvard College, Cambridge, Massachusetts
      • J.D. (1993), Harvard Law School, Cambridge, Massachusetts
    • Law professor and legal scholar
    • 2012: Elected to the American Academy of Arts and Sciences

    "Interring the Nondelegation Doctrine"

    See also: Nondelegation doctrine

    The nondelegation doctrine is a principle in constitutional and administrative law that holds that Congress cannot delegate its legislative powers to executive agencies or private entities. It is derived from an interpretation of Article I of the United States Constitution and the separation of powers principle.[4]

    In their article, Posner and Vermeule argue that when Congress grants statutory authority to an agent (for example, an administrative agency), the power exercised by such an agent is necessarily executive and not legislative, so long as the agent is acting within the bounds of the authority granted to it by Congress. Thus, the nondelegation doctrine is a legal fiction, and Congress cannot and does not ever delegate its legislative power:[1]

    “
    A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power. Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academics. (p. 1,721)[5]     		”

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 University of Chicago Law Review, "Interring the Nondelegation Doctrine," Autumn 2002
    2. ↑ University of Chicago Law School, "Eric Posner," accessed December 13, 2017
    3. ↑ Harvard Law School, "Adrian Vermeule," accessed December 13, 2017
    4. ↑ Legal Information Institute, "Nondelegation Doctrine," accessed September 5, 2017
    5. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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