Article   |   Volume 167, Issue 7

Dimensions of Delegation

By
167 U. Pa. L. Rev. 1849 (2019)

May 2019












How can the nondelegation doctrine still exist when the Court over decades has approved so many pieces of legislation with fairly unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the intelligible principle, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine.

The nondelegation doctrine remains alive, and is more manageable and coherent too, even if it has almost never been invoked to strike down legislation authorizing lawmaking by executive officers. Its infrequent use to invalidate legislation—even when these laws impose minimal decisionmaking constraint—is not a function of judicial confusion or of the Supreme Court’s abandonment of the doctrine. It is instead a function of the doctrine itself being grounded in more than just an intelligible principle test—and of the fact that legislation only infrequently seeks to effectuate grants of authority that reach the extremes on both dimensions of delegation.

Dimensions of Delegation - PennLawReview.com


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