"I'm Leavin' It (All) Up To You": Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine
Document Type
Article
Publication Date
2019
ISSN
2163-2553
Publisher
Cato Institute
Language
en-US
Abstract
In 2000, Cass Sunstein quipped that the conventional nondelegation doctrine, which holds that there are judicially enforceable constitutional limits on the extent to which Congress can confer discretion on other actors to determine the content of federal law, “has had one good year, and 211 bad ones (and counting).”1 The “one good year,” he said, was 1935, when the Court twice held unconstitutional certain provisions of the National Industrial Recovery Act that gave the president power to approve or create codes of conduct for essentially all American businesses, subject only to very vague, and often contradictory, statutory exhortations to pursue various goals.2 In 2018, Professor Sunstein still claimed: “To say the least, the standard nondelegation doctrine does not have a glorious past. In all of American history, it has had just one good year.”
Recommended Citation
Gary S. Lawson,
"I'm Leavin' It (All) Up To You": Gundy and the (Sort-of) Resurrection of the Subdelegation Doctrine
,
in
Cato Supreme Court Review
31
(2019).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/2549
