Thursday, June 17, 2021
Kristin E. Hickman (Minnesota; Google Scholar), Nondelegation As Constitutional Symbolism, 88 Geo Wash. L. Rev. ___ (2021):
The divided Supreme Court in Gundy v. United States and subsequent events have given rise to a general expectation that the Court will soon revitalize the nondelegation doctrine by replacing the intelligible principle standard. Some have greeted the prospect of this doctrinal shift with cheers of exaltation, others with cries of impending doom, anticipating the demise of the administrative state. This article contends that these predictions are overblown.
Statutory delegations of rulemaking authority and policymaking discretion are more deeply embedded in American law, and more complicated and variable, than proponents of the nondelegation doctrine seem willing to acknowledge. The alternatives to the intelligible principle standard proposed by Justices Gorsuch and Kavanaugh are piecemeal—case by case, statute by statute, delegation by delegation. Consequently, should the Court replace the intelligible principle standard, the most likely outcome is doctrinal change that is more incremental and symbolic than substantial.
More categorical and sweeping alternatives are available. Among them, this article particularly documents the common understanding in the first half of the twentieth century that regulations adopted under statutory delegations of general rulemaking authority (as opposed to specific authority grants) could not be legally binding without violating the nondelegation doctrine. But the Court has expressed little interest in a broad, categorical standard.
The decision whether to replace the intelligible principle standard should be evaluated in terms of incremental and symbolic doctrinal change, rather than as the dramatic alteration of the administrative state that some Court observers anticipate.
This article will be published as the Foreword to the George Washington Law Review's annual administrative law issue.