Nondelegation and the Administrative
|The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.
— John Locke, Second Treatise on Government, 1690
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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
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.
|Do not neglect during a period of administration by the virtuous to provide against succession by the incompetent or corrupt, for that time will come. Wise and just magistrates encourage us to relax our vigilance, but that is when it is most important to exercise strict safeguards.
— Jon Roland
Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy
Perspectives, Symposium, Cardozo Law Review, Vol. 20 No. 3, Jan.
- Representation and Nondelegation: Back to
Basics, by Marci A. Hamilton, Cardozo Law Review, Vol. 20:807
- Structures and Terms of Consent:
Delegation, Discretion, Separation of Powers, Representation, Participation,
Accountability?, by Hans A. Linde, Cardozo Law Review, Vol.
- How the Law Was Lost, by Paul Craig
Roberts, Cardozo Law Review, Vol. 20:853 1999.
- Delegation as a Danger to Liberty, by
Nadine Strossen, Cardozo Law Review, Vol. 20:861 1999.
- Legislative Implications of Reasserting
Congressional Authority over Regulations, by William A. Niskanen,
Cardozo Law Review, Vol. 20:939 1999.
Nondelegation Doctrine and the Separation of Powers: A Political Science
Approach, by David Epstein & Sharyn O'Halloran, Cardozo Law
Review, Vol. 20:947 1999.
- Controlling Chevron-Based
Delegations, by Ernest Gellhorn & Paul Verkuil, Cardozo Law
Review, Vol. 20:989 1999.
- Delegation and Democracy: A Reply to My
Critics, by David Schoenbrod, Cardozo Law Review, Vol. 20:731
and Democracy: Comments on David Schoenbrod, by Peter H. Schuck, Cardozo
Law Review, Vol. 20:775 1999.
Schmemocracy, by Dan M. Kahan, Cardozo Law Review, Vol. 20:795
the Supreme Court Truly Matters Today: The Necessity of a Check on
Congressional and Presidential Power, by Marci A. Hamilton, Nov. 9,
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.
Without Responsibility: How Congress Abuses the People through Delegation,
Review by Douglas H. Ginsburg of book by David Schoenbrod, Yale U. Pr.
Delegation of Legislative Powers, from the Legislative Handbook of the Cato
Use and Abuse of Executive Orders and Other Presidential Directives, by
Todd F. Gaziano, Heritage Foundation.
on the Constitutions 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.
The State of Federalism of John O. McGinnis, Professor, Benjamin Cardozo
School of Law, before the Senate Committee on Governmental Affairs, May 5,
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.
In the Administrative State, by Bruce Newman, Department of Political
Science at Western Oklahoma State College.
Court: The Upcoming Clash Between Federalism and Pre-emption Is Foretold in the
Geier v. American Honda Opinions, by Michael Greve.
Recent Controversy Over the Non Delegation Doctrine, by Jeffrey Bossert
Clark, associate at Kirkland & Ellis.
- 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).
- The Legal
Origins of the Modern American State, by William J. Novak, Associate
Professor of History, U. Chicago.
Contracting State, by Jody Freeman, Professor of Law, U. Cal. Los
The Nondelegation Doctrine, and Tobacco, by Thomas W. Merrill.
Mirage of Administrative Justice, Review of book by James Bovard, July
Run a Constitution: The Legitimacy of the Administrative State, Review of
book by John A. Rohr, Kansas U. Pr. 2000.
Prosecutorial State, by Charles J. Fox, Department of Political Science,
Texas Tech University. A past defender of the administrative state raises some
- Constitution: Fact or Fiction, by Dr.
Gene Schroder. Examines Emergency Rule and other violations of the
- Constitution Violated, Not Suspended
— Letter to Dr. Gene Schroder from Jon Roland, May 14, 1995.
- Is the Constitution Suspended? — Article
from The New American by Thomas A. Burzynski, Feb 5, 1996.
the Constitution Been "Suspended?" No, It's Worse than That, by Kevin
Craig. Commentary on Constitution: Fact or Fiction, by Eugene
Meaning of Meaning: The Foundations of Law have been Destroyed, by Kevin
Craig. Advocates a "test oath".
Hurst and the Administrative State: From Williams to Wisconsin, by Daniel
R. Ernst. Discusses a defender of the administrative state.
- Office of the Law Revision Counsel,
U.S. House of Representatives — These are the people who are restating the
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
- Regulations.gov — Gateway to
the Administrative State. Start here to try to stop further usurpations.
- Considerations on the
Constitutionality of the President's Proclamations, John Henderson
(1854) — Commentary on executive orders.
- How stare
decisis Subverts the Law, by Jon Roland — How that practice
improperly delegates legislative powers to the judiciary.
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.
search on "nondelegation doctrine" — Get many online documents on the