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Publication Date

2011

Abstract

In federal administrative law, the nondelegation
doctrine purports to forbid Congress from entrusting its
essential legislative powers to administrative agencies.
The Supreme Court developed this doctrine during the
nineteenth century to safeguard republican values
embedded in the Constitution. Over time, however, the
Court has loosened the doctrine's grip, permitting federal
agencies to wield broad lawmaking powers subject to
minimalist "intelligible principles" established by
Congress. The Court has defended this approach on
pragmatic grounds, arguing that Congress cannot perform
its essential legislative function without entrusting
lawmaking authority to administrative agencies. What
the Court has never adequately addressed, however, is the
extent . to which congressional delegation potentially
undermines liberty by instituting domination-the
capacity for arbitrary state action. Although the Court
continues to invoke the nondelegation doctrine's
republican ideals, it has yet to articulate a coherent legal
theory to explain how its anemic review of congressional
delegations can be squared with the Constitution's liberty-
promoting checks and balances.
This Article contends that courts can reconcile
administrative lawmaking with the Constitution's
republican design, but only if they abandon the
nondelegation doctrine's antiquated separation of powers

rationale. In its place, courts should focus upon due
process as the primary constitutional constraint on
congressional delegation. Although the link between
delegation and due process has received only sparse
attention in legal scholarship, the Supreme Court has
employed due process analysis in a variety of cases
involving both state and federal delegations. Three
general principles inform these cases: to ensure that
congressional delegation does not beget domination,
agency lawmaking must be (1) constrained by a basic
substantive standard, (2) channeled through fair and
deliberative administrative procedures, and (3) subject to
political accountability and judicial review. This
subterranean due process model challenges the
conventional wisdom that due process is inapplicable to
agency rulemaking. It also has a variety of important-
and potentially controversial-implications for other areas
of federal administrative law, including the scope of
Chevron deference, the Administrative Procedure Act's
applicability to presidential lawmaking, and the
constitutional status of federal delegations to states, tribes,
private entities, and international organizations.

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