Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated

Abstract

The nondelegation doctrine has roots that extend as far back as three centuries, or so most of us suppose. In The Second Treatise of Government, John Locke listed four constraints on power, last that power, being derived from People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, Legislative can have no to transfer their Authority of making Laws, and place it in other hands.Most contemporary readers have assumed two things about Locke's statement: First, that was to make rules for society. Second, that this delegated to make laws could not be transferred to third parties because people had never authorized their agents to further delegate. These two principles underlay conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of power.In their recent article, Interring Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider meaning of Locke's epigram and reassess foundations of nondelegation doctrine. In their view, legislative power generally references right to vote on bills in a legislature along with other de jure powers of legislators. Moreover, Locke's maxim means no more than that legislature cannot make third parties by giving them to vote in legislature. So when Article I of Constitution speaks of legislative Powers, it refers to those powers individually held by federal legislators, including most prominently right to vote on bills. Furthermore, under their nondelegation doctrine, these are powers that cannot be delegated to third parties. Under their view, neither Locke's epigram nor federal Constitution go further and prohibit broad delegations of discretion to third parties because such delegations do not create legislators and hence cannot delegate power. Accordingly, should Congress delegate to some third party its entire to regulate Commerce, Congress has not delegated at all in either a Lockean or a constitutional sense.Professors Posner and Vermeule deserve praise for reexamining fundamental assumptions about nature and meaning of and of nondelegation doctrine. When scholars don't periodically reconsider conventional wisdom, scholarship stagnates and shibboleths are unreflectively accepted as constitutional gospel.Having said this, we doubt that they truly have laid to rest either traditional understanding of or conventional nondelegation doctrine. Our disagreements are both normative and descriptive. We cannot discern (and they do not advance) a plausible rationale for simultaneously permitting Congress to delegate large amounts of lawmaking or rulemaking discretion to third parties while strictly forbidding delegations of right to vote in Congress. Moreover, as an original matter, we believe that Locke and Constitution used phrase the power to refer to to make rules for society and not ability to exercise de jure powers of legislators. Hence, if one concludes that Congress cannot delegate powers (either because such grants are not authorized or, alternatively, are implicitly forbidden), one must be worried that at some point, delegation of large amounts of discretion might constitute a delegation of power.Furthermore, whatever meaning one should ascribe to phrase legislative Powers found in Article I Vesting Clause, we think that Posner and Vermeule too quickly reject conventional reading of Locke's nondelegation principle. Their revisionist reading simply cannot make sense of Locke's repeated claims that only those whom people have appointed as legislators can make rules for people. Locke denied that entailed to make third parties into legislators by delegating to them right to make laws. He was not merely claiming that those with could not cede votes in legislature.Finally, we conclude that if Posner and Vermeule applied relentless criticism that they visit upon conventional nondelegation doctrine to naive prohibition on delegation of voting rights, naive prohibition would seem equally dead. The heavy burden that they insist applies to conventional nondelegation doctrine makes all implicit constraints extremely dubious. Perhaps we should prepare for two interments rather than one.Although we have sympathy for conventional nondelegation doctrine, space considerations prevent us from mounting an adequate defense of it here. Hence, all we claim is that if one concludes that delegation of is impermissible (for whatever reason), one must have in mind a prohibition akin to conventional nondelegation doctrine. If, as Posner and Vermeule claim and as many others believe, Constitution prohibits delegation of power, nondelegation doctrine is alive and kicking.