Line-drawing arguments concerning the nondelegation doctrine: Defining legislative authority
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One of the main areas of inquiry and disagreement concerning to the nondelegation doctrine is how to draw the line between a legislative act that engages in permissible delegation versus one that crosses the line into impermissible delegation. This page presents one of the different ways that scholars and courts have distinguished between legislative statutes that confer permissible powers to an agency through delegations of authority and those that violate the nondelegation doctrine through impermissible delegations.
There are two main approaches to where and how to draw the line:
Defining legislative authority
Scholars and legal practitioners have put forth disparate definitions of legislative authority in order to better understand what constitutes permissible and impermissible delegations. Below is a selection of definitions of legislative authority that aim to draw the lines surrounding legislative authority for the purposes of delegation analysis.
Claim: Legislative authority is the power to fashion legally binding rules
- In Department of Transportation v. Association of American Railroads, Justice Clarence Thomas offered the following definition of legislative power: “[T]he core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make ‘law’ in the Blackstonian sense of generally applicable rules of private conduct. [...] the power to fashion legally binding rules is legislative.”[1]
- Thomas' definition of legislative power asserts that the power to enact legally binding rules governing private conduct can only be exercised by the legislative branch.[1] Thus, the promulgation of legally binding regulations by executive agencies, according to Thomas, infringes on legislative authority.[1]
Claim: Legislative authority is the power to vote in Congress
- In “Interring the Nondelegation Doctrine," administrative law scholars Eric Posner and Adrian Vermeule claim that Congress does not violate the nondelegation doctrine through delegations of power but only through delegations of a lawmaker’s vote in Congress.[2] Legislative authority, therefore, does not refer to the authority to make the laws but only the authority to cast a vote on proposed legislation.[2] They write, "[W]e agree that the Constitution bars the 'delegation of legislative power.'" They add, "In our view, however, the content of that prohibition is the following: Neither Congress nor its members may delegate to anyone else the authority to vote on federal statutes or to exercise other de jure powers of federal legislators. What we argue, in contradiction of the usual view, is that a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power."[2]
- In this way, Posner and Vermeule's interpretation of the nondelegation doctrine circumvents line-drawing between permissible and impermissible delegations of authority and, instead, redefines legislative authority in non-delegable terms.[3]
Claim: Legislative authority is the power to make laws
- In "Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated," administrative law scholars Larry Alexander and Saikrishna Prakash respond to Posner and Vermeule's definition of legislative authority by revisiting nondelegation principles put forth by political theorists.[3] The authors cite the work of historical scholars, including John Locke, to defend their definition of legislative authority as the power to make laws rather than the power to cast a vote.[3] They write, “[W]e think that Posner and Vermeule too quickly reject the conventional reading of Locke’s nondelegation principle."[3] They add, "Their revisionist reading simply cannot make sense of Locke’s repeated claims that only those whom the people have appointed as legislators can make rules for the people.”[3]
See also
- Search Google News for this topic
- Nondelegation doctrine
- Taxonomy of arguments about the nondelegation doctrine
- Ballotpedia's administrative state coverage
Footnotes
- ↑ 1.0 1.1 1.2 George Mason Law Review, "Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine," 2018
- ↑ 2.0 2.1 2.2 University of Chicago Law Review, "Interring the Nondelegation Doctrine," 2002
- ↑ 3.0 3.1 3.2 3.3 3.4 University of Chicago Law Review, "Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated," 2003
