Rossi on Nondelegation

Available on SSRN is an article on the nondelegation doctrine by Jim Rossi (Florida State) from the Encyclopedia of the Supreme Court of the United States (David S. Tanenhaus, ed.; Detroit : Macmillan Reference USA, 2008; ISBN: 9780028661247).  Bites from the article:

In Field v. Clark, 143 U.S. 649, 692 (1892), Justice Harlan acknowledged "[t]hat Congress cannot delegate legislative power . . . . is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."  ... Normatively, the doctrine is premised primarily on the concern that "[u]nchecked delegation would undercut the legislature's accountability to the electorate and subject people to rule through ad hoc commands rather than democratically considered general laws" ... However, since 1935 the Supreme Court has not held a single statute unconstitutional on nondelegation grounds ... While the nondelegation doctrine has fallen into disfavor as a direct way of invalidating congressional actions that assign power to the President or to an executive branch agency, it remains a very important to several modern doctrines of constitutional and administrative law ... The nondelegation doctrine also lingers in the backdrop of modern administrative law, serving primarily to limit the executive branch ... nondelegation principles could be said to require that some government actor take responsibility for making the hard choices reflected in regulatory decisions and arguably courts may be willing to give Congress more leeway than administrative agencies in making their decisions.

Thanks to Larry Solum's Legal Theory Blog.  EMM