The nondelegation doctrine may remain moribund, but the outlines of a delegation doctrine may be visible in the Court’s recent jurisprudence. Instead of policing the limits on Congress’s power to delegate authority to administrative agencies, the Court has instead been focusing on whether the power administrative agencies seek to exercise has been properly delegated by Congress in the first place. This emerging delegation doctrine may be seen in both the Court’s recent major questions doctrine cases, as well as the Court’s decisions refining and constraining the Chevron doctrine. In both contexts the Court has embraced the principle that agencies may only exercise power delegated to them by Congress, and the amount of evidence required to demonstrate that authority has been delegated should correlate with the nature and scope of the authority claimed. Fully embracing the delegation doctrine would result in a more coherent jurisprudence and address many contemporary concerns about the administrative state and the proper role of the judiciary in policing the exercise of delegated power.


Delegation, Nondelegation doctrine, major questions doctrine, administrative law, supreme court

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Harvard Journal of Law & Public Policy: Per Curiam


COinS Jonathan Adler Faculty Bio