Philip Hamburger
91 Geo. Wash. L. Rev. 1083
The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.
This Foreword goes beyond existing scholarship in showing how underlying principles, framing assumptions, constitutional text, and contemporary analysis are all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination.
At the same time, the Foreword shows the refinement of the Constitution’s approach. The Constitution’s sophistication has not been much appreciated in the scholarly literature. It will be seen, however, that the Constitution was anything but crude in barring transfers of powers. For example, it adopted the separation of powers not in an absolute way but as a default principle. Although it precluded the transfer of legislative power, it left much room for executive rulemaking. Although its powers were externally exclusive, they were not always exclusive internally—that is, some of them could be subdelegated within the branches of government—and even externally, they permitted the exercise of much nonexclusive authority. Wherever one stands on delegation, these important distinctions qualify the larger point about the location of legislative power.
Not narrowly an originalist or technical question, the problem here involves visceral social and political concerns. This Foreword therefore completes its historical analysis with contemporary considerations, showing that congressional transfers of legislative power rest on a legacy of prejudice and that, even today, they are mechanisms for discrimination, disenfranchisement, decision-making irrationality, and political conflict.
