Article by Michael B. Rappaport
This Article presents a new theory of the nondelegation doctrine. It argues that the original meaning of the Constitution supports a strict, formalist version of the doctrine in most areas, but that the doctrine does not apply to certain selected parts of the law. The Article derives a strict version of the doctrine primarily from the Executive Power Vesting Clause, which allows the President to exercise only limited discretion. Although the term “executive power” is ambiguous and might be interpreted to allow the President to receive substantial statutory discretion, the Article contends that history, structure, and purpose indicate that executive power should normally be interpreted to allow only limited discretion. This interpretation contributes to four basic principles of constitutional structure: the separation of powers, bicameralism, federalism, and checks and balances.
History, structure, and purpose suggest, however, that in certain areas the original meaning of executive power should be understood more broadly. In areas where executives traditionally received broad delegations and where limiting delegations would not significantly further structure and purpose, the nondelegation doctrine does not apply. Based on this theory, the Article maintains that the nondelegation doctrine probably does not extend to foreign and military affairs, foreign commerce, rules governing the internal operations of the judiciary and the executive, and the management of government real estate.
Although the Article presents the selective theory of the nondelegation doctrine, it does not provide a comprehensive defense of the theory. Instead, the Article applies the theory to one area—that of spending laws—in an exploration of the constitutionality of the Line Item Veto Act. It argues that the nondelegation doctrine applies in an unusual way in the spending area. Appropriation laws—laws that authorize the withdrawal of money from the treasury and which traditionally have taken the form of authorizing a certain amount to be spent for particular programs—are not subject to the nondelegation doctrine. However, authorization laws—laws that establish and regulate government programs—are subject to the nondelegation doctrine and therefore Congress must make the basic policy decisions about how such programs may operate. Thus, Congress can pass appropriation laws each year that confer as much as discretion as it desires, but these laws can only fund programs for which Congress has made the basic policy decisions.
About the Author
Michael B. Rappaport. Professor of Law, University of San Diego School of Law.
Citation
76 Tul. L. Rev. 265 (2001)