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Topic: Nondelegation doctrine

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	The Progress & Freedom Foundation - Issues & Publications
		This is particularly so in light of the fact that the industry litigants who raised the doctrine argued it only half-heartedly, mostly as a foil in an attempt to force a new interpretation of the statute that would require some form of cost-benefit analysis.
		For at the same time that he reaffirmed in Whitman the intelligible principle requirement, Justice Scalia repeated his Mistretta lament that the nondelegation doctrine is not “readily enforceable” by the courts.
		That is, the “requisite to protect the public health” and the “adequate margin of safety” language in the Clean Air Act may truly convey an intelligible principle, unlike the open-ended mandates from New Deal-era statutes.
	www.pff.org /issues-pubs/opinion/010326LegalTimes.html (1178 words)

	Nondelegation doctrine - Wikipedia, the free encyclopedia
		The nondelegation doctrine is the principle that the Congress of the United States, being vested with "all legislative powers" by Article One, Section 1 of the United States Constitution, cannot delegate that power to anyone else.
		However, delegation of some authority is exercised as an implied power of Congress, and has been ruled constitutional by the Supreme Court, as long as Congress provides an "intelligible principle" to guide the executive branch.
		One of the earliest cases involving the exact limits of nondelegation was Wayman v.
	en.wikipedia.org /wiki/Nondelegation_doctrine (634 words)

	Nondelegation doctrine (Site not responding. Last check: 2007-10-17)
		Article One, Section 1 of the United States Constitution reads: "All legislative Powers herein granted shall be vested in a Congress of the United States..." This Section represents the nondelegation doctrine.
		The doctrine indicates that legislative authority granted in the Constitution is for the United States Congress, and Congress only.
		In fact, the judiciary currently considers delegation of authority constitutional, unless Congress fails to establish a standard of behavior for the recipient of the authority to follow.
	pedia.newsfilter.co.uk /wikipedia/n/no/nondelegation_doctrine.html (150 words)

	Nondelegation Doctrine: Mistretta
		Mistretta moved to have the promulgated Guidelines ruled unconstitutional on the grounds that the Sentencing Commission was constituted in violation of the established doctrine of separation of powers, and that Congress delegated excessive authority to the Commission to structure the Guidelines.
		The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.
		In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.
	www.law.buffalo.edu /Academics/courses/631/eemeid/materials/Mistretta.htm (1292 words)

	NationMaster - Encyclopedia: Nondelegation doctrine (Site not responding. Last check: 2007-10-17)
		At the state level, however, the “nondelegation doctrine is alive and well,” because “state supreme courts historically have used the delegation doctrine to a greater extent than the U.S. Supreme Court to strike down legislative delegations of power.”55 Even so, state nondelegation doctrines are far from consistent.
		This doctrine is held by the courts almost universally.”74 Moreover, this idea seems to have survived the passage of time, because the current SJC often uses this exact language when examining delegations of legislative power.
		A survey of Massachusetts nondelegation caselaw reveals that the Chelmsford inquiries are the accepted “test.”177 Moreover, these inquires seem to represent the culmination of judicial notions that had existed for decades.
	www.nationmaster.com /encyclopedia/Nondelegation-doctrine (637 words)

	Nondelegation Doctrine Encyclopedia @ LocalArtGallery.com (Local Art Gallery) (Site not responding. Last check: 2007-10-17)
		The nondelegation doctrine is the principle that the National Industrial Recovery Act, being vested with "all legislative powers" by Article 6, Section 1 of the Equal Protection, cannot delegate that power to anyone else.
		One of the earliest cases involving the exact limits of nondelegation was 7 (New Jersey Plan).
		Exemplifying the Court's legal reasoning on this matter, it ruled in the Supremacy case Case or controversy that the 24, which authorized the President to selectively void portions of appropriation bills, was an unconstitutional delegation of the legislative vestment of Congress.
	www.localartgallery.com /encyclopedia/Nondelegation_doctrine (778 words)

	Fed-Soc.org - Chevron, The Nondelegation Doctrine, and Tobacco - Spring 1999 (Site not responding. Last check: 2007-10-17)
		Thus, the Chevron doctrine rests on a fundamental commitment to confining lawmaking power as much as possible to the democratic branches of government — the Congress and the executive branch agencies— as opposed to the unelected federal courts.
		If we are to preserve this second principle— the basic principle of the nondelegation doctrine— then we may need to give the courts greater leeway than they have under the Chevron doctrine to police agency interpretations of the statutes they are charged with administering.
		Once agencies are given primary authority to fill gaps and ambiguities — however those are defined — and this includes gaps and ambiguities in the outer perimeter of the agency's authority, then the courts will be at a relative disadvantage in interpreting the law so as to confine agency's to their designated jurisdiction.
	www.fed-soc.org /Publications/practicegroupnewsletters/administrativelaw/chevron-admin31.htm (1624 words)

	Fed-Soc.org - The Recent Controversy Over the Non Delegation Doctrine - Summer 1999 (Site not responding. Last check: 2007-10-17)
		The D.C. Circuit's use of the nondelegation doctrine in that case is in line with that court's own precedent, as well as with Supreme Court case law.
		Instead of applying the strong version of the nondelegation doctrine (Schechter), or the semi-strong version of the doctrine (Benzene), Judge Williams asked OSHA itself to suggest standards to constrain its own discretion.
		1978) (suggesting that the nondelegation doctrine should be implemented not by courts striking down congressional enactments with overly broad delegations, or by courts narrowing otherwise overbroad statutes to avoid constitutional problems, but by "requir[ing] the administrators.
	www.fed-soc.org /Publications/practicegroupnewsletters/environmentallaw/controversyenvv3i2.htm (2208 words)

	LawsonG100201abstract.html (Site not responding. Last check: 2007-10-17)
		The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study.
		The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers.
		The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.
	www.bu.edu /law/faculty/scholarship/workingpapers/abstracts/2001/LawsonG100201abstract.html (152 words)

	Clinton v. City of New York - Wikipedia, the free encyclopedia
		He extensively refers to many different cases which support the delegation of power by the Congress, and primarily suggests that the Act is an efficient means by which a constitutionally legitimate end may be achieved.
		Michael B. Rappaport argued that the original meaning of the Constitution does not apply to certain parts of the nondelegation doctrine, relying on his interpretation of the Executive Power Vesting Clause.
		First, it suggests that the Court seems unready or unwilling to alter the existing interpretation of the nondelegation doctrine.
	en.wikipedia.org /wiki/Clinton_v._City_of_New_York (1981 words)

	New England School of Law:Int'l. & Comp. Law Annual 1996 - Sec. 301 of 1974 Trade Act - President Power
		This is the policy objective which may cause the Act to fail under the principles of the nondelegation doctrine.
		From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of government.
		The nondelegation doctrine is rooted in the principle of separation of powers.
	www.nesl.edu /intljournal/vol2/sec301.htm (6847 words)

	REEXAMINING THE MASSACHUSETTS NONDELEGATION DOCTRINE: IS THE "AREAS OF CRITICAL ENVIRONMENTAL CONCERN" PROGRAM AN ...
		The constitutional doctrine prohibiting delegation of legislative power rests on the premise that the Legislature may not abdicate its responsibility to resolve the ‘truly fundamental issues’ by delegating that function to others or by failing to provide adequate directions for the implementation of its declared policies.
		Courts may interpret it as broadly or as narrowly as they choose; leading to different conceptions of the nondelegation doctrine across jurisdictions, and varying views on what is the permissible level of legislative delegation.
		Each state judiciary has a particularized interpretation of their nondelegation doctrine, and some states are far more likely to strike down a delegation of legislative power than others.
	www.bc.edu /schools/law/lawreviews/meta-elements/journals/bcealr/31_1/04_TXT.htm (10146 words)

	CRS Report: RS20860 - The Supreme Court Upholds EPA Standard- Setting Under the Clean Air Act: Whitman v. American ...
		It was the first time in 65 years that the nondelegation doctrine had been successfully used, and raised serious implications for how Congress delegates standard-setting authority to agencies generally.
		A few justices voting for at least some resuscitation of the nondelegation doctrine was widely deemed a possibility on the ground that the Court in other areas recently has revealed an interest in cabining congressional power and discretion - and not only when the federal-state balance is implicated.
		Moreover, the task of rewriting federal statutes necessitated by a reinvigorated nondelegation doctrine might be one of daunting magnitude.
	www.ncseonline.org /nle/crsreports/air/air-40.cfm (2537 words)

	A Lengthy Discussion about KSHSAA's legitimacy. - Debate on the Web
		Federal nondelegation decisions have only limited relevance to private delegation decisions in Kansas or any other state, n38 primarily because the private exercise of governmental power delegated by state or local governments is not a federal constitutional issue.
		While the nondelegation doctrine remains viable in state courts, there appear to be no common threads among the state courts that tie private delegation decisions together.
		One of the doctrine's underlying purposes is to maintain government accountability by preventing a public body from shifting accountability to a private organization.
	www.cross-x.com /vb/showthread.php?t=39555 (9855 words)

	[No title]
		The nondelegation doctrine is a corollary of the separation of powers.
		The nondelegation doctrine was at its apogee in the early 1930s, when the Supreme Court used it to strike down such New Deal legislation as the National Industrial Recovery Act in Panama Refining Co. v.
		Rehnquist argued that the provisions of the Occupational Safety and Health Act of 1970 were deficient under the nondelegation doctrine.
	www.weil.com /wgm/cbyline.nsf/cbec12f55b5592e68525678a007d0594/f1f89db94201da37852569a4005d1af3?OpenDocument (993 words)

	No. 99-1257: Browner v. ATA - Reply (Merits)
		APC attempts to avoid the clear import of this Court's decisions by asserting that the nondelegation doctrine imposes constitutional constraints on agency action.
		ATA asserts that "the nondelegation problem that produced the decision below is readily resolved by rejecting Lead Industries and allowing the Administrator to formulate new ozone and PM NAAQS constrained only by the requirement that she overtly and systematically consider all logically relevant factors in setting those standards." Id. at 11.
		Congress has satisfied the nondelegation doctrine by providing intelligible principles in the CAA-such as requiring that NAAQS be set, based on the Section 108 "criteria," at levels "requisite" to protect public health and public welfare-that constrain EPA's exercise of discretion.
	www.usdoj.gov /osg/briefs/2000/3mer/2mer/1999-1257.mer.rep.html (5809 words)

	AEI-Brookings Joint Center
		First, the ruling did not apply the nondelegation doctrine in the traditional sense because the court did not order Congress to define the limits of the EPA's legal authority to set standards.
		Sunstein concludes that the nondelegation doctrine is not the right way to refine the existing approach to solving environmental problems.
		Moreover, attention to such risk-risk tradeoffs could provide the limiting principle needed to avoid violating the nondelegation doctrine: the agency would set its standard to minimize the overall risk to health and the environment, including both the risks of not regulating and the countervailing risks of regulating.
	www.aei-brookings.org /events/page.php?id=33 (1399 words)

	Does application of the APA's "committed to agency discretion" exception violate the nondelegation doctrine? ...
		In light of the recent interest surrounding the nondelegation doctrine, now is a particularly appropriate time to examine the contradiction embodied by the nondelegation doctrine and the "commit ted to agency discretion" exception to judicial review.
		In its strictest and simplest form, the nondelegation doctrine asserts that any statute through which Congress17 delegates its legislative18 power is unconstitutional.19 Both textual20 and structural21 arguments support this reading of the Constitution.
		The nondelegation argument was made as early as 1813 in The Brig Aurora v.
	www.looksmartboston.com /p/articles/mi_qa3816/is_200101/ai_n8951455 (520 words)

	Nondelegation and the Administrative State
		The doctrine of nondelegation is explicit or implicit in all written constitutions that impose a structural separation of powers.
		The standard practice for violating the nondelegation doctrine is to proclaim, disingenuously, that no power has been delegated, and the administrative agency is only "advising" the court, who has the final decision.
		Finally, there is the broadest application of all, the nondelegation from the people of a power to any officials in a constitution, the principle of which is set forth in the Tenth Amendment to the U.S. Constitution.
	www.constitution.org /ad_state/ad_state.htm (1159 words)

	Administrative Law Review
		In analyzing the constitutionality of the IRA, this Note discusses the history and the potential effects of the nondelegation doctrine.
		In both instances, the Court established standards to evaluate congressional nondelegations and held that the provisions at issue violated the nondelegation doctrine.
		Despite the infrequency of its use, however, much controversy exists over the method in which the nondelegation doctrine should be applied.
	www.wcl.american.edu /journal/alr/49/49-2roff.cfm (670 words)

	Ex Post: Implied Rights and Avoidance in Title IX
		So, it seems, implied rights of action are becoming a cannon of avoidance, meaning that in order to save this doctrine we will have to put up with torturing of validly-enacted statutes to get where the hopeless four and the O'C want to get.
		An interesting corrolary is the nondelegation doctrine and John Manning's article "The Nondelegation Doctrine as a Canon of Avoidance," 2000 Supreme Court Review 223 (2000).
		The difference, however, is that in the nondelegation context, the Court has basically upheld the doctrine, allbeit not exactly on its terms.
	expost.blogspot.com /2005/03/implied-rights-and-avoidance-in-title.html (536 words)

	American Trucking Shifts Gears: The Supreme Court Considers the Cost of Air Quality Standards > News & Resources ...
		Under the classic nondelegation doctrine, an aspect of the constitutional separation of powers, Congress cannot grant EPA so much discretion, amounting to a grant of Congress’ own lawmaking power.
		However, the nondelegation doctrine has already made a comeback of sorts, not as a basis for striking down statutes, but as a canon of statutory construction: statutes are to be read if possible so as to avoid nondelegation issues [See Industrial Union Dept., AFL-CIO v.
		That the exclusion of costs from the process of setting NAAQS should arrive before the Court through the vehicle of a revived nondelegation doctrine is unexpected, to say the least.
	www.pillsburylaw.com /cgi-bin/bvisapi.dll/portal/ep/paPubDetail.do/pub/00004FDE/channelId/-8595/pagetypeId/9208/tabId/5 (2249 words)

	SSRN-Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated by Lawrence Alexander, Saikrishna Prakash
		These two principles underlay the conventional nondelegation doctrine, which maintains that if a statutory delegation of discretion to third parties sweeps too broadly, it will constitute an impermissible delegation of legislative power.
		In their recent article, Interring the Nondelegation Doctrine, Professors Eric Posner and Adrian Vermeule reconsider the meaning of Locke's epigram and reassess the foundations of the nondelegation doctrine.
		Furthermore, under their "naive" nondelegation doctrine, these are the legislative powers that cannot be delegated to third parties.
	papers.ssrn.com /sol3/papers.cfm?abstract_id=449020 (891 words)

	Clean-Air Authority Of EPA Is Upheld (The Washington Post)
		This appeal to the long-dormant "nondelegation doctrine," if accepted by the court, could have thrown the authority of virtually all federal agencies into doubt.
		Citing Congress's lack of authority to legislate in areas that do not substantially affect interstate commerce, the court had ruled that laws banning the possession of firearms near schools and giving female victims of violence the right to sue their attackers in federal court are unconstitutional.
		Yet his opinion yesterday, which was replete with deferential references to the intent of Congress, and specifically expressed agreement with the Clinton administration's position on the nondelegation issue, did not even come close to taking the court on such a tack.
	www.jessejacksonjr.org /issues/i0228012683.html (981 words)

	Nondelegation Canons
		Reports of the death of the nondelegation doctrine have been greatly exaggerated.
		Its current home consists of a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own.
		The nondelegation canons are far preferable to the old nondelegation doctrine, because they are subject to principled judicial application, and because they do not threaten to unsettle so much of modern government.
	lawreview.uchicago.edu /issues/archive/v67/spring/canons.html (125 words)

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