The Delegation Doctrine: Could the Court Give it Substance?

Part I of this Article demonstrates the need for a new approach to the delegation doctrine. It shows that the Court has failed to articulate a coherent test of improper delegation and that the alternative tests offered by commentators are not sufficient. Part II then sets forth a proposed test of improper delegation. The basic principles of an approach prohibiting delegations of legislative power are outlined and illustrated. This Article does not, however, attempt anything so grand as to suggest a final definition of the doctrine or to pass broadly on the validity of statutes. Such an encompassing analysis is made impossible by the rich variety of statutory types and the importance of looking at each statute in context. This Article attempts the humbler task of arguing that the approach to delegation here proposed provides a doctrinal basis for case law development that is more coherent than the Court’s current approach. Finally, Part III asks whether the proposed test constitutes a manageable and appropriate exercise of judicial power.