Nondelegation and the Administrative State

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The doctrine of nondelegation is explicit or implicit in all written constitutions that impose a structural separation of powers. It is usually applied in questions of constitutionally improper delegations of legislative powers to executive branch officials, but may be more broadly applied to questions of improper delegations of legislative powers to judicial officials, improper delegations of judicial powers to legislative or executive officials, improper delegations of executive powers to legislative or judicial officials, improper delegations of legislative or judicial powers to clerical subordinates within their branches, or improper delegations of legislative, judicial, or executive powers to private parties, or improper delegations of private powers to public officials. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch.

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. But then the court merely rubberstamps the agency finding or actions, without adequate review, "deferring" to its judgment. This ruse has the effect, in practice, of delegating both lawmaking and judicial power to the agency, contrary to U.S. and state constitutions. This is the way income taxes are assessed and collected. Officials maintain language that is formally constitutional, but defeat the constitution in practice (or "as applied" to use the term of art).

That means if the Powers that Be don't like you, they will incarcerate you, maybe ruin your body, or even kill you, by hiring "agents" to operate under color of law, and then standing aside when it comes to supervising them.

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.

1.           The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives, Symposium, Cardozo Law Review, Vol. 20 No. 3, Jan. 1999.
   1.    Representation and Nondelegation: Back to Basics, by Marci A. Hamilton, Cardozo Law Review, Vol. 20:807 1999.
   2.    Structures and Terms of Consent: Delegation, Discretion, Separation of Powers, Representation, Participation, Accountability?, by Hans A. Linde, Cardozo Law Review, Vol. 20:823 1999.
   3.    How the Law Was Lost, by Paul Craig Roberts, Cardozo Law Review, Vol. 20:853 1999.
   4.    Delegation as a Danger to Liberty, by Nadine Strossen, Cardozo Law Review, Vol. 20:861 1999.
   5.    Legislative Implications of Reasserting Congressional Authority over Regulations, by William A. Niskanen, Cardozo Law Review, Vol. 20:939 1999.
   6.        The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, by David Epstein & Sharyn O'Halloran, Cardozo Law Review, Vol. 20:947 1999.
   7.    Controlling Chevron-Based Delegations, by Ernest Gellhorn & Paul Verkuil, Cardozo Law Review, Vol. 20:989 1999.
   8.    Delegation and Democracy: A Reply to My Critics, by David Schoenbrod, Cardozo Law Review, Vol. 20:731 1999.
   9.        Delegation and Democracy: Comments on David Schoenbrod, by Peter H. Schuck, Cardozo Law Review, Vol. 20:775 1999.
   10.        Democracy Schmemocracy, by Dan M. Kahan, Cardozo Law Review, Vol. 20:795 1999.
2.           Why the Supreme Court Truly Matters Today: The Necessity of a Check on Congressional and Presidential Power, by Marci A. Hamilton, Nov. 9, 2000.
3.            Reviving the Sleeping Nondelegation Doctrine, by Jamin B. Raskin. — The Supreme Court can right the balance between the legislature and the agencies by forcing Congress to provide clear guidance within its legislation.
4.        Power Without Responsibility: How Congress Abuses the People through Delegation, Review by Douglas H. Ginsburg of book by David Schoenbrod, Yale U. Pr. 1995.
5.           The Delegation of Legislative Powers, from the Legislative Handbook of the Cato Institute.
6.           The Use and Abuse of Executive Orders and Other Presidential Directives, by Todd F. Gaziano, Heritage Foundation.
7.           Testimony on the Constitution’s Nondelegation Doctrine of Alan Charles Raul, before the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs Committee on Government Reform, United States House of Representatives June 14, 2000.
8.           Testimony: The State of Federalism of John O. McGinnis, Professor, Benjamin Cardozo School of Law, before the Senate Committee on Governmental Affairs, May 5, 1999.
9.           The Role Of Congress In Monitoring Administrative Rulemaking, Testimony of Jerry Taylor, Director of Natural Resource Studies, The Cato Institute, before the Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, on the Role of Congress in Monitoring Administrative Rulemaking, September 12, 1996.
10.           Reining In the Administrative State, by Bruce Newman, Department of Political Science at Western Oklahoma State College.
11.           Collision Court: The Upcoming Clash Between Federalism and Pre-emption Is Foretold in the Geier v. American Honda Opinions, by Michael Greve.
12.           The Recent Controversy Over the Non Delegation Doctrine, by Jeffrey Bossert Clark, associate at Kirkland & Ellis.
13.        Dead Again: The Nondelegation Doctrine, the Rules/Standards Dilemma and the Line Item Veto, by Bernard W. Bell, Associate Professor of Law, Rutgers Law School (Newark), 44 Villanova Law Review 189 (1999).
14.        The Legal Origins of the Modern American State, by William J. Novak, Associate Professor of History, U. Chicago.
15.        The Contracting State, by Jody Freeman, Professor of Law, U. Cal. Los Angeles.
16.           Chevron, The Nondelegation Doctrine, and Tobacco, by Thomas W. Merrill.
17.           The Mirage of Administrative Justice, Review of book by James Bovard, July 1999.
18.           To Run a Constitution: The Legitimacy of the Administrative State, Review of book by John A. Rohr, Kansas U. Pr. 2000.
19.           The Prosecutorial State, by Charles J. Fox, Department of Political Science, Texas Tech University. A past defender of the administrative state raises some doubts.
20.  Constitution: Fact or Fiction, by Dr. Gene Schroder. Examines Emergency Rule and other violations of the Constitution.
    1.    Constitution Violated, Not Suspended — Letter to Dr. Gene Schroder from Jon Roland, May 14, 1995.
    2.   Is the Constitution Suspended? — Article from The New American by Thomas A. Burzynski, Feb 5, 1996.
21.           Has the Constitution Been "Suspended?" No, It's Worse than That, by Kevin Craig. Commentary on Constitution: Fact or Fiction, by Eugene Schroder.
22.           The Meaning of Meaning: The Foundations of Law have been Destroyed, by Kevin Craig. Advocates a "test oath".
23.           Willard Hurst and the Administrative State: From Williams to Wisconsin, by Daniel R. Ernst. Discusses a defender of the administrative state.
24.  Office of the Law Revision Counsel, U.S. House of Representatives — These are the people who are restating the Statutes at Large (SAL) into the United States Code (USC), some of which have been re-enacted as statutes and some of which have not, so it requires some research to determine which are statutes and which are only "evidence" of the statutes. The USC is not to be confused with the Code of Federal Regulations (CFR), or with various government forms and instruction books, which are a product of the various executive branch agencies, allegedly based on the statutes or codes, but sometimes extending and deviating from them in significant ways. The application of provisions of the CFR to any but government employees or contractors, or to visitors to government facilities or users of government proprietary assets, is unconstitutional exercise of the legislative power by the executive branch agency. For more on this see the Borlase Guide.
25.  Regulations.gov — Gateway to the Administrative State. Start here to try to stop further usurpations.
26.   Considerations on the Constitutionality of the President's Proclamations, John Henderson (1854) — Commentary on executive orders.
27.        How stare decisis Subverts the Law, by Jon Roland — How that practice improperly delegates legislative powers to the judiciary.
28.         Constitutional Issues Related to the Use of Administrative Sanctions, by P. Cacaud, M. Kuruc, and M. Spreij, part of a report for the UN Food and Agriculture Organization (FAO). Compares U.S. and French constitutional law.
29.           Google search on "nondelegation doctrine" — Get many online documents on the topic.