Interring the Nondelegation Doctrine

Autores

  • Eric A. Posner University of Chicago
  • Adrian Vermeule University of Chicago

DOI:

https://doi.org/10.12660/rda.v282.2023.88636

Palavras-chave:

Doctrine of non-delegation, Executive Branch, delegation of the Legislative Branch, Constitution, statutory authority

Resumo

A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academic.

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Biografia do Autor

Eric A. Posner, University of Chicago

Professor of Law, University of Chicago.

Adrian Vermeule, University of Chicago

Professor of Law, University of Chicago.

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Publicado

2023-03-23

Como Citar

A. Posner, E., & Vermeule, A. (2023). Interring the Nondelegation Doctrine. Revista De Direito Administrativo, 282(1), 15–61. https://doi.org/10.12660/rda.v282.2023.88636

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