Recently published: Chad Squitieri (independent), Towards Nondelegation Doctrines (86 Missouri L. Rev. (2022)). Here is the abstract:
When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each corresponding to one of Congress’ distinct powers. Adopting such an approach can lessen the risk that reviving the nondelegation principle – a task the current Supreme Court has expressed an interest in taking on – will result in a complete reworking of the modern administrative state.
And from the introduction (footnotes omitted):
In this Article, I offer a two-part proposal. First, the single nondelegation doctrine should be replaced with a series of nondelegation doctrines, each applying to a different congressional power. Second, each nondelegation doctrine should be developed by interpreting specific constitutional provisions to mean what the public originally understood them to mean at the time the provisions were enacted.
To be sure, one need not adopt the second part of my proposal to adopt the first. Those who object to interpreting text pursuant to its original public meaning, and those who prefer other nondelegation tests – such as the intelligible principle or important subjects tests – can accept the first part of my proposal alone. Put differently, one might be convinced of the benefits of transforming a single doctrine into multiple doctrines, but decide to develop those multiple doctrines by using different interpretive methods—such as a law and economics method, or a method of interpretation pursuant to which text is better able to take on new meaning over time. Those alternative methods could vastly improve the current nondelegation doctrine. But in this Article, I use a historical based approach to develop multiple doctrines—in part because that approach might be attractive to the current Supreme Court (which seems poised to revive the nondelegation principle in potentially problematic ways), and in part because recent nondelegation scholarship has exhibited a focus on historical evidence.
Fully developing nondelegation doctrines for each of Congress’ powers will require more historical research than can be offered here. Entire articles can (and should) be dedicated to determining the original public meaning of each power. I invite such scholarship by introducing and defending the idea that the original public meaning of each of Congress’ powers speaks not only to the subjects Congress can address (e.g., what is “commerce” and “war”), but also to the extent Congress can delegate its authority to address those subjects (e.g., who can “regulate” commerce or “declare” war).
Rather than review all delegations under a single nondelegation doctrine, different delegations should be reviewed under different nondelegation doctrines. And the relevant doctrines should not be derived from judicial dicta or the latest political science literature. Instead, the doctrines should be derived from the Constitution’s text and history. Thus, when it comes to the “legislative powers” vested in Congress by Article I, Section 8, the relevant nondelegation question concerns whether a particular delegation would have been considered a “necessary and proper” means “for carrying [the relevant Article I, Section 8 power] into execution,” as understood by the objective reader in 1788. By comparison, when it comes to the power vested in Congress by the Fifteenth Amendment, the relevant nondelegation question includes a consideration as to whether an objective reader in 1870 would have understood a particular delegation to have been an “appropriate” way for Congress to “enforce” the Fifteenth Amendment’s voting rights.
Parts II.A and II.B will discuss the current state of the nondelegation doctrine by briefly describing the intelligible principle test and its failure to produce a judicially manageable standard. Part II.C will then situate this Article within an active scholarly debate discussing the existence (or nonexistence) of the nondelegation doctrine at the time of the Founding. That debate has helpfully uncovered important evidence exhibiting narrow (and broad) delegations made by early Congresses. This evidence is helpful, but its limits must be recognized: the evidence only speaks to particular delegations of particular powers. By attempting to leverage power-specific evidence into larger arguments in favor of the existence (or nonexistence) of a single nondelegation doctrine, scholars on both sides of the present debate go too far.
In response to the present debate, Part III proposes the development of multiple nondelegation doctrines. These text-centric doctrines require a closer parsing of the relevant text and history than has been called for in present literature. In proposing nondelegation doctrines, Part III provides textual analyses of Congress’ original legislative powers, other powers vested in Congress by the Constitution as originally ratified, and additional powers vested in Congress by constitutional amendments. Each of those powers requires the application of a different nondelegation doctrine.
Finally, Part IV provides three defenses of nondelegation doctrines…
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