Document Type
Article
Publication Date
2002
ISSN
0042-6601
Publisher
Virginia Law Review Association
Language
en-US
Abstract
The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.
Recommended Citation
Gary S. Lawson,
Delegation and Original Meaning
,
in
88
Virginia Law Review
327
(2002).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/685
Comments
Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 01-12