George Washington University
The nondelegation doctrine, as it has been traditionally understood, maintains that the federal Constitution places limits (however modest) on the kind and quantity of discretion that Congress can grant to other actors. Eric Posner and Adrian Vermeule have recently described this doctrine as a "neurotic burden"' on the legal system that "lacks any foundation in constitutional text and structure, in standard originalist sources, or in sound economic and political theory.''2 They agree that the Constitution forbids Congress from delegating the formal power to enact legislation through the Article I voting process,3 but they argue that "a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power, '' 4 no matter how much or what kind of discretion the statute grants. They have recently reaffirmed this stark view of the nondelegation doctrine in response to criticisms by Larry Alexander and Sai Prakash; 5 their latest declaration is that "the standard nondelegation doctrine has no real pedigree in constitutional text and structure, in originalist understandings, or in judicial precedent; nor can plausible arguments from democratic theory or social welfare be marshaled to support it."
Discretion as Delegation: The 'Proper' Understanding of the Nondelegation Doctrine
George Washington Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2555