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THE MYTH OF THE STATE NONDELEGATION DOCTRINES
Journal article

THE MYTH OF THE STATE NONDELEGATION DOCTRINES

Joseph Postell and Randolph J May
Administrative law review, Vol.74(2), p.263
01/04/2022

Abstract

Administrative law Delegation of authority Government agencies Judges & magistrates Supreme Court decisions
Scholars and commentators across the ideological spectrum are preparing themselves for a possible revival of the nondelegation doctrine. Nevertheless, there are clear signals that a change is on the horizon. In one of the most recent major cases involving the conventional nondelegation doctrine, Gundy v. United States, three Justices signed an opinion by Justice Gorsuch advocating the abandonment of the Court's "intelligible principle" test adopted in 1928 in J. W. Hampton, Jr. v. United States. Instead, the Justices urged the adoption of a more robust limitation on congressional delegations of authority to administrative agencies. Indeed, in many of the states that, in practice, have relatively robust nondelegation doctrines, the test employed resembles the Supreme Court's current "intelligible principle" test.

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