Bill of Rights Nondelegation

Bill of Rights Nondelegation

December 23, 2023, 49 BYU Law Review 513

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. 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.