In a time where the executive branch continues to grow in size and strength, reviving the nondelegation doctrine has become more important than ever. Judicial enforcement of this abandoned rule that Congress cannot delegate its legislative power serves three vital functions. It preserves the separation of powers, prevents tyranny, and promotes democratic accountability. But even if we acknowledge that enforcement of the doctrine is necessary to preserve the American form of government, a more difficult question is how the doctrine ought to be enforced. This Article rejects the formulations of the nondelegation doctrine proposed by both functionalists and formalists and proposes “pragmatic formalism” as a solution that carves a path between the two existing theories. After explaining the theory and applying it to the facts of the Supreme Court’s major nondelegation cases, the Article also proposes a solution to one of the most difficult challenges facing the nondelegation doctrine: delegation during times of national emergency. By advocating for the use of pragmatic formalism to enforce the nondelegation doctrine, I hope to provide a rule that preserves the separation of powers, prevents tyranny, and promotes democratic accountability, but that also takes into account the realities and difficulties of lawmaking.
Pragmatic Formalism, Separation of Powers, and the Need to Revisit the Nondelegation Doctrine,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol51/iss2/4