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Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson
Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson
Faculty Scholarship
The nondelegation doctrine, as it has been traditionally understood, maintains that the federal Constitution places limits (however modest) on the kind and quantity of discretion that Congress can grant to other actors. Eric Posner and Adrian Vermeule have recently described this doctrine as a "neurotic burden"' on the legal system that "lacks any foundation in constitutional text and structure, in standard originalist sources, or in sound economic and political theory.''2 They agree that the Constitution forbids Congress from delegating the formal power to enact legislation through the Article I voting process,3 but they argue that "a statutory grant of authority …
Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson
Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson
Faculty Scholarship
Does the Constitution limit the extent to which Congress can grant discretion to other actors? The traditional nondelegation doctrine says yes, though advocates of the doctrine strongly disagree about the source of that principle and the location of the line between permissible and impermissible discretion. A number of modern scholars and judges, however, doubt whether the Constitution contains any such principle. This article demonstrates that the Constitution constrains Congress's ability to grant discretion to other actors through the requirement that laws for carrying federal power into execution must be "necessary and proper." The words "necessary" and "proper" have distinct constitutional …