Law Commons^™

Nondelegation Blues, Philip A. Hamburger

Faculty Scholarship

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

This Foreword goes beyond existing scholarship in showing how underlying principles, framing assumptions, constitutional text, and contemporary analysis are all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination.

At the same time, …