Congress' Role in Advancing the Nondelegation Doctrine

Most concerns about nondelegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions that are being made by administrative agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created nondelegation canons, such as the major questions doctrine and other clear-statement rules. In an upcming article, Prof. Chris Walker and Prof. Jonathan Adler address a different, underexplored dimension of the nondelegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that were wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction

To address this distinct, temporal problem of delegation, Prof. Walker and Prof. Adler suggest that Congress revive the practice of regular reauthorization of statutes that govern federal regulatory action. In some circumstances, this will require Congress to consider adding reauthorization incentives, such as sun-setting provisions. In other regulatory contexts, Congress may well decide the costs of mandatory reauthorization outweigh the benefits. Nevertheless, the professors argue that Congress should more regularly use this longstanding legislative tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies and spur more regular legislative engagement with federal regulatory policy. A return to reauthorization would also mitigate some of the major concerns that have been raised in recent years concerning Chevron deference and could affect judicial approaches to statutory stare decisis.

Please join us for a lunchtime discussion on the nondelegation doctrine with Prof. Chris Walker and Daniel Flores. 

Featuring:

• Prof. Christopher J. Walker, Associate Professor of Law, The Ohio State University Moritz College of Law
• Daniel Flores, Chief Counsel for the Subcommittee on Regulatory Reform, Commercial and Antitrust Law for the Committee on the Judiciary, U.S. House of Representatives

Register HERE!