- Collection:
- Georgia Law Review
- Title:
- Excepting Nondelegation from Supreme Court Review
- Creator:
- Lomax, Michael
- Date of Original:
- 2024-06-03
- Subject:
- University of Georgia. School of Law
Law--Study and teaching
Georgia Law Review Association - Location:
- United States, Georgia, Clarke County, Athens, 33.96095, -83.37794
- Medium:
- notes (documents)
- Type:
- Text
- Format:
- application/pdf
- Description:
- For almost a century, the nondelegation doctrine has allowed Congress to create hundreds of distinct federal agencies—provided the delegation meets the “intelligible principle” requirement. While not exacting, this standard underlies the current administrative state, and absent a sufficiently defined alternative, the intelligible principle should remain undisturbed. A recent dissent and a separate pending case, however, give pause. Both present opportunities to rework the intelligible principle, but the solutions offered do not advance the ball. Rather, they suggest replacing a vague interpretive standard with a troublesome interpretive standard, which is unwarranted when a meaningfully clearer one is unfeasible. Further still, conceptualizing agency power as a commingling of the two political branches implicates the political question doctrine, potentially immunizing congressional delegations from judicial review. Under Article III’s Exceptions Clause, Congress has the power to regulate the Supreme Court’s appellate jurisdiction, implying some authority to determine justiciability as well. Invoking the political question doctrine, Congress can thus remove nondelegation claims from Supreme Court review by statute, funneling these cases instead to the D.C. Circuit to ensure an Article III court hears the claims. By doing so, Congress would effectively adopt the intelligible principle, limiting undue alternatives and crystallizing it in amber within the federal courts.
nondelegation -- Supreme Court -- judicial review -- Law - External Identifiers:
- Metadata URL:
- https://digitalcommons.law.uga.edu/glr/vol58/iss3/17
- Holding Institution:
- Alexander Campbell King Law Library
- Rights:
-
