Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State

The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.