Nondelegation and the Administrative State

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 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.

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
  1. Remote Link - HTML The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives, Symposium, Cardozo Law Review, Vol. 20 No. 3, Jan. 1999.
    1. HTML Version or Menu Text Version Remote Link - PDF Representation and Nondelegation: Back to Basics, by Marci A. Hamilton, Cardozo Law Review, Vol. 20:807 1999.
    2. HTML Version or Menu Text Version Remote Link - PDF 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. HTML Version or Menu Text Version Remote Link - PDF How the Law Was Lost, by Paul Craig Roberts, Cardozo Law Review, Vol. 20:853 1999.
    4. HTML Version or Menu Text Version Remote Link - PDF Delegation as a Danger to Liberty, by Nadine Strossen, Cardozo Law Review, Vol. 20:861 1999.
    5. HTML Version or Menu Text Version Remote Link - PDF Legislative Implications of Reasserting Congressional Authority over Regulations, by William A. Niskanen, Cardozo Law Review, Vol. 20:939 1999.
    6. HTML Version or Menu Remote Link - PDF      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. HTML Version or Menu Text Version Remote Link - PDF Controlling Chevron-Based Delegations, by Ernest Gellhorn & Paul Verkuil, Cardozo Law Review, Vol. 20:989 1999.
    8. HTML Version or Menu Text Version Remote Link - PDF Delegation and Democracy: A Reply to My Critics, by David Schoenbrod, Cardozo Law Review, Vol. 20:731 1999.
    9. HTML Version or Menu Remote Link - PDF Delegation and Democracy: Comments on David Schoenbrod, by Peter H. Schuck, Cardozo Law Review, Vol. 20:775 1999.
    10. HTML Version or Menu Remote Link - PDF Democracy Schmemocracy, by Dan M. Kahan, Cardozo Law Review, Vol. 20:795 1999.
  2. Remote Link - HTML 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. Remote Link - HTML 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. HTML Version Remote Link - HTML      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. Remote Link - PDF The Delegation of Legislative Powers, from the Legislative Handbook of the Cato Institute.
  6. Remote Link - PDF The Use and Abuse of Executive Orders and Other Presidential Directives, by Todd F. Gaziano, Heritage Foundation.
  7. Remote Link - HTML 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. Remote Link - HTML 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. Remote Link - HTML 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. Remote Link - HTML Reining In the Administrative State, by Bruce Newman, Department of Political Science at Western Oklahoma State College.
  11. Remote Link - HTML Collision Court: The Upcoming Clash Between Federalism and Pre-emption Is Foretold in the Geier v. American Honda Opinions, by Michael Greve.
  12. Remote Link - HTML The Recent Controversy Over the Non Delegation Doctrine, by Jeffrey Bossert Clark, associate at Kirkland & Ellis.
  13. PDF Version Remote Link - PDF      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. HTML Version or Menu Remote Link - PDF The Legal Origins of the Modern American State, by William J. Novak, Associate Professor of History, U. Chicago.
  15. HTML Version or Menu Remote Link - PDF      The Contracting State, by Jody Freeman, Professor of Law, U. Cal. Los Angeles.
  16. Remote Link - HTML Chevron, The Nondelegation Doctrine, and Tobacco, by Thomas W. Merrill.
  17. Remote Link - HTML The Mirage of Administrative Justice, Review of book by James Bovard, July 1999.
  18. Remote Link - HTML To Run a Constitution: The Legitimacy of the Administrative State, Review of book by John A. Rohr, Kansas U. Pr. 2000.
  19. Remote Link - HTML 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. Remote Link - HTML Constitution: Fact or Fiction, by Dr. Gene Schroder. Examines Emergency Rule and other violations of the Constitution.
    1. HTML Version Text Version Zipped WordPerfect Constitution Violated, Not Suspended — Letter to Dr. Gene Schroder from Jon Roland, May 14, 1995.
    2. HTML Version Text Version Is the Constitution Suspended? — Article from The New American by Thomas A. Burzynski, Feb 5, 1996.
  21. Remote Link - HTML Has the Constitution Been "Suspended?" No, It's Worse than That, by Kevin Craig. Commentary on Constitution: Fact or Fiction, by Eugene Schroder.
  22. Remote Link - HTML The Meaning of Meaning: The Foundations of Law have been Destroyed, by Kevin Craig. Advocates a "test oath".
  23. Remote Link - HTML Willard Hurst and the Administrative State: From Williams to Wisconsin, by Daniel R. Ernst. Discusses a defender of the administrative state.
  24. Remote Link - HTML 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. HTML Version or Menu 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. HTML Version or Menu Text Version      How stare decisis Subverts the Law, by Jon Roland — How that practice improperly delegates legislative powers to the judiciary.
  28. HTML Version or Menu Remote Link - PDF       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. Remote Link - HTML Google search on "nondelegation doctrine" — Get many online documents on the topic.
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Original URL: http://www.constitution.org/ad_state/ad_state.htm
Maintained:
Jon Roland of the Constitution Society
Original date: 2002/12/24 —