Bill of Rights Nondelegation

Authors

Eli Nachmany

Abstract

Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly — and rigorously — applying the doctrine in a different context: In litigation concerning various provisions of the Bill of Rights, the Court has enforced a nondelegation principle to constrain the delegation of unfettered discretion to the executive.

The uncovering of a Bill of Rights nondelegation doctrine reveals that, contrary to popular belief, the Court has been actively applying some form of nondelegation for many years. Recognizing a Bill of Rights nondelegation doctrine could have important implications for Bill of Rights jurisprudence writ large. Further, understanding the “Bill of Rights nondelegation doctrine” as a coherent line of cases separate from what this Article calls the “Article I nondelegation doctrine” helps to clarify the connection that some have pointed out between the nondelegation principle and certain parts of the Bill of Rights. From the First and Second Amendments to the Fourth and Fifth Amendments, the Bill of Rights nondelegation doctrine prevents the delegation of unfettered discretion when enumerated rights are at stake.

Rights

© 2023 Brigham Young University Law Review

Recommended Citation

Eli Nachmany, Bill of Rights Nondelegation, 49 BYU L. Rev. 513 (2023).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol49/iss2/9