DELEGATION AND ORIGINAL MEANING


Gary Lawson

Boston University School of Law Working Paper 01-12

Abstract

The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.

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Gary S. Lawson Contact Information

glawson@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-8747



Presentation and Publication Information:

forthcoming 88 Va. L. Rev. --- (2002) (April 2002 issue of Virginia Law Review).


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