Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated

Abstract

Most contemporary readers have assumed two things about Locke's statement: First, that the was the to make rules for society. Second, that this delegated to make laws could not be transferred to third parties because the people had never authorized their agents to further delegate. These two principles underlay the 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 the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine.2 In their view, the legislative power generally references the right to vote on bills in a legislature along with the other de jure powers of legislators. Moreover, Locke's maxim means no more than that the legislature cannot make third parties legislators by giving them the to vote in the legislature. So when Article I of the Constitution speaks of legislative Powers,3 it refers to those powers