Non-delegation doctrine

Question 1

What is the holding of Schechter?

Answer 1

Congress may not delegate an essentially legislative function it is vested with

Question 2

Leg Vesting Clause

Answer 2

All legislative powers herein granted shall be vested in Congress

Question 3

When asking delegation question under current doctrine, it is relevant if there is ___ but not __

Answer 3

express delegation, dispositive

Question 4

Current Doctrine: What looks like delegation may be justified if ___

Answer 4

intelligible principle guiding the legislation (can grant authority to till in details)

Question 5

What is an intelligible principle?

Answer 5

idea to guide agency in exercise of discretion and standard by which agency conduct can be judged

Question 6

What case does intelligible principle come from?

Answer 6

Mistretta

Question 7

Nondelegation doctrine is a fiction because ___ (1)

Answer 7

the IP can be minimal or even non-existent (Gundy)

Question 8

Ham thinks that delegation should really be called __

Answer 8

divestiture

Question 9

Morrison Scalia dissent

Answer 9

Threat to separation of powers if threat to individual freedom

Question 10

Nondelegation doctrine is a fiction because ___ (2)

Answer 10

de facto delegation to agencies

Question 11

Ham: Delegation is unconstitutional because __ (1)

Answer 11

really divestiture given irrevocability due to bicameralism and presentment

Question 12

Ham: Delegation is unconstitutional because __ (2)

Answer 12

If Congress can divest itself of powers, separation of powers is meaningless

Question 13

Ham: Delegation is unconstitutional because __ (3)

Answer 13

Absurd results, could Congress give all powers to POTUS (Post Roads and Mistretta Scalia dissent)

Question 14

Ham: Delegation is unconstitutional because __ (4)

Answer 14

undemocratic

Question 15

Debate about meaning of separation of powers

Answer 15

Shuffle around (Youngstown) OR discrete functions (Hamiltion Fed 78)

Question 16

Ham says functional concerns with nondelegation shouldn’t be dispositive because ___

Answer 16

Congress can achieve same end with constitutional means

Question 17

Ham says precedent/public perception with nondelegation shouldn’t be dispositive because ___

Answer 17

judicial duty to Constitution

Question 18

Gundy Gorsuch dissent suggests that things can be delegated if ___

Answer 18

Congress prescribes rule and only making application depend on executive factfinding

Question 19

JW Hamptom majority

Answer 19

the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.

Question 20

Why does Ham have a problem with JW Hampton?

Answer 20

common sense and inherent necessities not in Consti, also Taft too sympathetic to exec as former Pres

Question 21

There is ___ in the Const delegating powers, rather it speaks of __

Answer 21

no clause, vesting

Question 22

Problem with Congress trying to undelegate from Exec

Answer 22

thanks to bicameralism and presentment, can’t withdraw without presidential veto