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Full-Text Articles in Law
Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters
Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters
Faculty Scholarship
The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …
Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller
Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller
Faculty Scholarship
Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed Handelsman Shugerman
Faculty Scholarship
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a "removal of context." This article focuses on the "executive power" part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England's limited monarchy: the era's rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a "royal prerogative" or a default royal power. The …