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.
A. J. Kritkos,
Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment,
82 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol82/iss2/8