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- Title
THE NONDELEGATION SCHISM: ORIGINALISM VERSUS CONSERVATISM.
- Authors
ANDERSON, JAMEY
- Abstract
The Supreme Court appears poised to breathe new life into the nondelegation doctrine, a judicially created theory of constitutional law stating that Congress may not delegate its legislative power to the executive or any other entity. Scholars have long criticized the nondelegation doctrine as poorly defined, unsupported by constitutional text and history, and impossible to implement without a major expansion of the judiciary's role. This Comment adds to this scholarship by arguing that the conservative majority's proposed nondelegation revival is best understood not as the resurrection of a unified theory but rather as two distinct doctrinal inventions reflecting the ideological commitments of their chief proponents. Whereas Justice Gorsuch fashions an originalist standard from cases selected from before the New Deal Era, Justice Kavanaugh applies a modern functionalist test to invalidate major rules disfavored by conservatives. Each approach has something the other lacks--historical pedigree on the one hand, analytical simplicity on the other. Although the Justices appear eager to blend their approaches, the Justices' approaches are in fact fundamentally incompatible with each other and deeply flawed on their own terms. Indeed, the facts of Justice Gorsuch's old cases largely fail Justice Kavanaugh's test--and betray expansive delegations at odds with Justice Gorsuch's own understanding. Justice Kavanaugh's approach likewise fails in its attempt to graft an interpretive test of convenience onto constitutional law. The rift between these approaches is more than academic, as the two standards produce different results in a contested area of regulatory law--federal greenhouse gas limits. This finding suggests that supporters of the administrative state should focus not just on whether the nondelegation doctrine is revived but also on what form it takes. How the Court resolves this split may provide an answer to a question likely to define the new majority: When does originalism trump conservatism?
- Subjects
DELEGATED legislation; UNITED States. Supreme Court; CONSTITUTIONAL law; UNITED States. Congress; COURTS
- Publication
Wisconsin Law Review, 2021, Vol 2021, Issue 4, p853
- ISSN
0043-650X
- Publication type
Article