Nondelegation Canons
Cass R. Sunstein
Reports of the death of the nondelegation doctrine have been greatly
exaggerated. Rather than having been abandoned, the doctrine has merely
been renamed and relocated. Its current home consists of a set of nondelegation
canons, which forbid executive agencies from making certain decisions
on their own. These canons forbid extraterritorial application of national
law, intrusions on state sovereignty, decisions harmful to Native Americans,
and absolutist approaches to health and safety. The nondelegation canons
are far preferable to the old nondelegation doctrine, because they are
subject to principled judicial application, and because they do not
threaten to unsettle so much of modern government.
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