Interring The Nondelegation Doctrine Video

Nondelegation:

Navigate through this content:

• Syllabus/Course Contents
• Video: Introduction to the Nondelegation Doctrine
• Reading 1: Gary Lawson, "Delegation and Original Meaning"
  • Link to the Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Reading 2: Eric Posner and Adrian Vermeule, "Interring the Nondelegation Doctrine"
  • Link to the Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Reading 3: A. J. Kritikos, "Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment"
  • Reading
  • Video: About the reading (~5 min)
  • Reflect on "go deeper" questions for self-study
• Expert Interview: Joseph Postell
• Expert Interview: Mark Chenoweth
• Expert Q and A
• Further Reading

Interring the Nondelegation Doctrine:

Video Transcript:

This video is about the article “Interring the Nondelegation Doctrine” by administrative law scholars Eric Posner and Adrian Vermeule. In this paper, Posner and Vermeule argue that there are no good constitutional, historical, or policy precedents that support the nondelegation doctrine. According to the authors, proponents of the nondelegation doctrine misunderstand the nature of congressional delegations of authority to administrative agencies, and the nondelegation doctrine doesn’t prevent the abuse and consolidation of power.

Posner and Vermeule first examine whether the founders intended to create a nondelegation doctrine. They take into consideration decisions made by the founders outside of drafting the Constitution. Specifically, they point to several examples from the First and Second Congresses that they claim contained delegations to the president that seem to violate the nondelegation doctrine. Moreover, they claim that the term is missing from the most prominent 19th-century legal treatises.

Posner and Vermeule continue by arguing that the nondelegation doctrine is a historical anomaly. Since the U.S. Supreme Court has only applied the nondelegation doctrine twice back in 1935, the authors argue that the doctrine’s short-lived application means that it is not a foundational doctrine of modern governance.

Posner and Vermuele later claim that proponents of the nondelegation doctrine misunderstand the nature of congressional delegations of authority. They argue that Congress delegates executive power, not legislative power, when it authorizes administrative agencies to issue regulations. Although the Constitution vests legislative power solely in the legislative branch, delegating the power to execute a law, according to the authors, is not the same as delegating actual lawmaking power. Thus, Posner and Vermeule claim that congressional delegations of power to agencies do not violate the nondelegation doctrine because Congress does not hand over its legislative power. Instead, Congress directs agencies to exercise executive power to implement statutes.

Lastly, Posner and Vermuele argue that the nondelegation doctrine would not prevent the accumulation of power in one branch, as proponents claim. If someone is willing to overstep constitutional bounds, in their view, then the doctrine would not stop them.