A. J. Kritkos


An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it. First, the Court has stated that there is an insurmountable line-drawing problem that occurs when delineating a permissible delegation from an impermissible one. And second, the Court has asserted that the non-delegation doctrine cannot be seriously enforced in a complex, modern society without disastrous consequences. I argue that both of those problems are real but can be mitigated by a non-delegation test that emphasizes the primacy of the legislature in lawmaking, and there are two existing models of a better way that the Court can choose from. A compromise solution pioneered by the civil non-delegation jurisprudence of Florida shows that the doctrine can be flexible while still limiting vacuous delegations. Alternatively, Florida’s criminal non-delegation jurisprudence and opinions by two leading federal jurists promote strict formalism when the delegation at issue provides the executive with authority to define a crime. This latter approach allows for an experiment by federal courts that would limit to the criminal context renewed non-delegation enforcement.

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