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Jamey Anderson: The Nondelegation Schism
Michael Ramsey

Jamey Anderson (University of Wisconsin Law School, J.D. candidate) has posted The Nondelegation Schism: Originalism Versus Conservatism (Wisconsin Law Review, forthcoming) (38 pages) on SSRN.  Here is the abstract:

The Supreme Court appears poised to breathe new life into the nondelegation doctrine, a judicially created theory of constitutional law that Congress may not delegate its legislative power to the executive or any other entity. Scholars have long criticized the nondelegation doctrine as poorly defined, unsupported by constitutional text and history, and impossible to implement without a major expansion of the judicial role. This Comment adds to this scholarship by arguing that the conservative majority’s proposed nondelegation revival is best understood not as the resurrection of a unified theory but rather as two distinct doctrinal inventions reflecting the ideological commitments of their chief proponents. Whereas Justice Gorsuch fashions an originalist standard from cases taken from before the New Deal era, Justice Kavanaugh applies a modern functionalist test to invalidate major rules disfavored by conservative policymakers. Though the justices appear eager to blend their approaches, they are in fact fundamentally incompatible. Indeed, the facts of Justice Gorsuch’s old cases largely fail Justice Kavanaugh’s test. This rift is more than academic, as the two standards produce different results in a contested area of regulatory law—federal greenhouse gas limits. This finding suggests that supporters of the modern administrative state should focus not just on whether the nondelegation doctrine is revived but also on what form it takes. How the Court resolves the conflicting demands of originalism and conservatism may offer an early look at a theme likely to define the new conservative majority.