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Josh Blackman on the Rules Enabling Act and the Non-Delegation Doctrine
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman asks: Does the Rules Enabling Act Violate the Non-Delegation Doctrine? Here is an excerpt: 

The Non-Delegation doctrine is aimed at preventing one branch (Congress) from delegating the legislative power to another branch (President). But what about the Judicial branch? We know from Article II, Section II that Congress can “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law.” So the Constitution envisaged some delegation, with Congress’s permission, of the power to appoint inferior officers. What about Congress delegating the legislative power to the courts?

Under the 1934 Rules Enabling Act (now codified at 28 U.S.C 2072), the Supreme Court “shall have the power to prescribe general rules of practice.” The statute stresses that “Such rules shall not abridge, enlarge or modify any substantive right.” After the Court proposes the rules, Congress can “enact[] legislation to reject, modify, or defer the pending rules,” but if it fails to do so, the rules go into effect. For all intents and purposes, the rules of procedure have the binding effect of law, even if they are not so labeled.