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Farina on Nondelegation

By Lawrence Solum

Cynthia R. Farina (Cornell Law School) has posted Deconstructing Nondelegation (Harvard Journal of Law and Public Policy, Vol. 33, No. 87) on SSRN. Here is the abstract:

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law ?right,? for nondelegation doctrine ? at least as traditionally stated ? does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly rather than continue to use nondelegation as a stalking horse.

Highly recommended, although I wonder whether one sentence in the text accompanied by one footnote provides sufficient warrant for the rather heavy-handed dismissal of the textualist arguments for the nondelegation doctrine.

Full post as published by Legal Theory Blog on February 23, 2010 (boomark / email).