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When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Georgia Law Review

In federal administrative law, the nondelegation
doctrine purports to forbid Congress from entrusting its
essential legislative powers to administrative agencies.
The Supreme Court developed this doctrine during the
nineteenth century to safeguard republican values
embedded in the Constitution. Over time, however, the
Court has loosened the doctrine's grip, permitting federal
agencies to wield broad lawmaking powers subject to
minimalist "intelligible principles" established by
Congress. The Court has defended this approach on
pragmatic grounds, arguing that Congress cannot perform
its essential legislative function without entrusting
lawmaking authority to administrative agencies. What
the Court has never adequately addressed, however, is the
extent …