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The Nondelegation Doctrine: Fledgling Phoenix or Ill-Fated Albatross

October 2001

Citation: 31 ELR 11151

Issue: 10

Author: Sandra B. Zellmer

Prior to the New Deal, the American judiciary was highly suspicious of regulatory legislation, which was viewed as upsetting the common law's support for private property interests and freedom of contract. Laissez-faire policies reigned. Regulatory statutes were vulnerable to invalidation under a variety of constitutional theories, including substantive due process, federalism and, for a brief period of time, delegating legislative authority to the executive branch, a constitutional offense under separation-of-powers principles.

Since the advent of the modern administrative state and the Administrative Procedure Act (APA) of 1946,1 the "nondelegation" doctrine has been, for all practical purposes, a dead letter in the federal arena. Even the most broad-sweeping authorizations have barely been questioned. Instead, the delegation of complex regulatory details to executive agencies is generally recognized as promoting efficient and effective government. So long as Congress provides some "intelligible principles" to guide the agency in its implementation of a statute, delegations have not raised constitutional concerns.2 Courts simply review agency interpretations of open-ended delegations as a matter of administrative law under the familiar standard from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,3 upholding the regulation so long as the agency's construction is reasonable.4

The author is Visiting Associate Professor, Tulane School of Law (2001) and Associate Professor, University of Toledo College of Law. Thanks go to Robert Adler, Martin LaLonde and Joseph Slater for their comments, and to Harrison (Hap) Dunning and the Rocky Mountain Mineral Law Foundation for the invitation to share a draft of this Article at the Eleventh Institute for Natural Resources Law Teachers. This Article follows up on issues raised in Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 ARIZ. ST. L.J. 941 (2000).

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