Federal Nondelegation Doctrine: Debunking the Myth, Part 1

My recent article in the Notre Dame Law Review titled “The Myth of the Federal Private Nondelegation Doctrine” debunks the myth that delegations of government power to private parties are unconstitutional. Despite widespread claims from judges and scholars, there is no evidence of such a doctrine and it seems to be nonexistent.

The article offers a new taxonomy that breaks down the different nondelegation doctrines, emphasizing the various reasons why a delegation might be problematic. These include giver-based, recipient-based, and application-based doctrines. By examining these different doctrines, it becomes clear that none of them categorically rules out private delegations. In fact, some doctrines actually facilitate privatization by exempting certain private delegations from constitutional requirements.

While private status may play a role in some cases, it is important to recognize that the factors relevant to these doctrines can apply to both the public and private sectors. Therefore, it becomes an empirical question, and the same factors can potentially invalidate public delegations as well. The article suggests that constitutional law should focus on specific objectionable factors rather than maintaining a formal public-versus-private distinction.

The introduction examines historical cases and recent court decisions that have perpetuated the belief that the nondelegation doctrine prohibits delegations to private entities. However, it highlights a significant problem with this consensus, emphasizing that once the doctrines are disentangled, none of them rule out private delegations as a whole.

The article’s taxonomy, with three basic categories, clarifies why specific delegations might be considered unconstitutional. These categories include legislative power, constitutional appointments, and due process rights. The article ultimately challenges the prevailing belief that private entities are categorically disabled from exercising federal power and argues for a reexamination of the nondelegation doctrines in future cases.