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Taxonomy of arguments about the nondelegation doctrine

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This page contains the main arguments related to the nondelegation doctrine and the legislative control of the administrative state.

The appropriate scope of congressional delegation in the administrative state is contested, with debates centering on constitutional limits, separation of powers, and the need for flexibility in governance. These debates are commonly framed around three contexts: arguments in favor of the nondelegation doctrine and against delegation, arguments against the nondelegation doctrine and in favor of delegation, and line-drawing arguments over what constitutes a permissible versus impermissible delegation of authority.

Arguments in favor of the nondelegation doctrine, and against delegation

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: Delegation violates the separation of powers

2. Argument: Delegation undermines public accountability

3. Argument: Delegation is wrong because it is unconstitutional

4. Argument: Delegation violates social compact theory


Arguments against the nondelegation doctrine, and in favor of delegation

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: The Constitution does not explicitly forbid delegating legislative power

2. Argument: Rulemaking is not the same as lawmaking

3. Argument: U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds

4. Argument: Agency law rules permit delegation

5. Argument: Increasing complexity of society requires Congress to delegate to do its job

6. Argument: Allowing executive agencies to exercise the discretion legislative delegation confers lets them adjust to unintended consequences

7. Argument: Advocates of the nondelegation doctrine really just oppose expansive federal regulations

8. Argument: Statutes giving open-ended authority to executive or judicial actors are not actually delegations


Line-drawing arguments concerning the nondelegation doctrine

Click the arrow (▼) in the list below to see claims under each argument.

1. Argument: Defining legislative authority

2. Argument: Permissible vs. impermissible delegations





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