William & Mary Bill of Rights Journal


Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the Administrative Procedure Act (APA), leaving no extrinsic, enforceable obligation to avoid arbitrary action. Third, the Supreme Court has barred from review the correctness of any factual finding by the President that provides the statutory trigger for his own power. Finally, a new presidential attitude has ushered in a collapse of the voluntary or informal norms of self-restraint that once offered some modicum of constraint on presidential power.

Developments in the Court’s separation-of-powers jurisprudence over decades have opened up a dangerous lacuna in the overall constitutional protection against arbitrary government action, ready to be exploited by any President who might show an inclination to read his or her power as unlimited and unchecked, undeterred by the norms of historical practice. When a President walks upon the stage thus set by prior doctrine, the combination creates a perfect storm for a threat to individual liberty. The following discussion will first examine each element of the problem in the case law as fleshed out by earlier scholars, and then examine the ramifications for the protection of rights today in the center of the storm. I will conclude by suggesting that the nondelegation doctrine should indeed be revived, but specifically for the purpose of limiting, constraining, and reviewing the actions of a President pursuant to direct delegated authority.