Non-delegation doctrine Flashcards
What is the holding of Schechter?
Congress may not delegate an essentially legislative function it is vested with
Leg Vesting Clause
All legislative powers herein granted shall be vested in Congress
When asking delegation question under current doctrine, it is relevant if there is ___ but not __
express delegation, dispositive
Current Doctrine: What looks like delegation may be justified if ___
intelligible principle guiding the legislation (can grant authority to till in details)
What is an intelligible principle?
idea to guide agency in exercise of discretion and standard by which agency conduct can be judged
What case does intelligible principle come from?
Mistretta
Nondelegation doctrine is a fiction because ___ (1)
the IP can be minimal or even non-existent (Gundy)
Ham thinks that delegation should really be called __
divestiture
Morrison Scalia dissent
Threat to separation of powers if threat to individual freedom
Nondelegation doctrine is a fiction because ___ (2)
de facto delegation to agencies
Ham: Delegation is unconstitutional because __ (1)
really divestiture given irrevocability due to bicameralism and presentment
Ham: Delegation is unconstitutional because __ (2)
If Congress can divest itself of powers, separation of powers is meaningless
Ham: Delegation is unconstitutional because __ (3)
Absurd results, could Congress give all powers to POTUS (Post Roads and Mistretta Scalia dissent)
Ham: Delegation is unconstitutional because __ (4)
undemocratic
Debate about meaning of separation of powers
Shuffle around (Youngstown) OR discrete functions (Hamiltion Fed 78)
Ham says functional concerns with nondelegation shouldn’t be dispositive because ___
Congress can achieve same end with constitutional means
Ham says precedent/public perception with nondelegation shouldn’t be dispositive because ___
judicial duty to Constitution
Gundy Gorsuch dissent suggests that things can be delegated if ___
Congress prescribes rule and only making application depend on executive factfinding
JW Hamptom majority
the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.
Why does Ham have a problem with JW Hampton?
common sense and inherent necessities not in Consti, also Taft too sympathetic to exec as former Pres
There is ___ in the Const delegating powers, rather it speaks of __
no clause, vesting
Problem with Congress trying to undelegate from Exec
thanks to bicameralism and presentment, can’t withdraw without presidential veto
