Prof. Philip Hamburger (Columbia) on the Nondelegation Doctrine

Crisis for the nondelegation doctrine The Supreme Court has used it for nearly a century to answer questions regarding transfers of legislative authority. It was made clear in Gundy v. United StatesThese answers have become outdated. We need a fresh approach.

The Constitution’s approach to the issue is the subject of this Article. While other scholarship tends only to concentrate on one concept (either delegation or vesting), this article takes an ecumenical approach. This article reveals layers of pertinent concepts and demonstrates how they contribute to the Constitution’s vision.

It is important to first consider consent, different power, separation and exclusivity, before you can delegate. The Framers opposed any congressional delegation but they didn’t stop there. They instead drafted the Constitution with regard to vesting. The Constitution states that the Constitution’s powers will “be vested” and not only vesting. This was not a mere transfer of powers; it was an explicit declaration that they were mandatory.

By presenting fundamental principles, text and drafting assumptions as a means to stop power transfer among government branches, the Article is far more than existing scholarship. A powerful combination of text, framing assumptions and underlying principles is rare in constitutional law.

Also, the Article demonstrates how the Constitution has refined its approach. Scholars have not appreciated the Constitution’s sophisticated nature. It will soon be apparent that the Constitution is not a crude instrument for preventing powers from being transferred. It adopted, for example, the principle of default separation rather than absolute separation.

Although it prohibited legislative power transfer, it made it possible to make executive rules. Even though its powers were externally exclusive, they were not always exclusive internally—that is, some of them could be subdelegated within the branches of government. These powers were not exclusive and allowed for a lot of non-exclusive power to be exercised. These distinctions, regardless of where one is on the question of the transfer of legislative powers, are crucial and should be considered as qualifying larger points about the place of legislative power.

This is not a technical question regarding the allocation of power. The problem involves more fundamental social and political values. It is often discussed by academics as well as judges, who tend to treat it like a question of doctrine. This ignores the legacy of discrimination, disenfranchisement and other prejudices.