Delegation, Time and the Nondelegation Baseline

A persistent problem for proponents of a robust non-delegation doctrine has been how to draw the line between permissible delegations of policy discretion and impermissible delegations of legislative authority. While the Court has not been willing to invalidate Congressional enactments on delegation grounds, non-delegation concerns have influenced other doctrines and judicial approaches to statutory interpretation. Ope-rationalizing this concern for the democratic legitimacy of the laws requires more than limiting the scope or span of delegations, however. It also requires a consideration of time. When past delegations are utilized to address unforeseen problems it is often impossible to say that any particular course of action has democratic warrant. Consideration of time, combined with the constitution’s non-delegation baseline, may provide a means to ope-rationalize and reinforce non-delegation principles through a delegation “step zero.” Courts should scrutinize agency claims of delegated power more closely, particularly when agencies draw upon older or previously unused sources of authority. Delegation of regulatory authority should not be presumed, and if there is no delegation of authority, there can be no violation of the non-delegation doctrine. This sort of “step zero” inquiry into the nature and scope of any asserted delegation may help constrain the sorts of unbounded delegations that about which a majority of the justices and delegation’s critics are concerned.