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Saturday, December 19, 2020

Robert Jackson on the Non-Delegation Doctrine

I've come upon an interesting artifact that may merit its own paper. In Robert Jackson's book on The Struggle for Judicial Supremacy, he criticized the Supreme Court's non-delegation cases (Panama Refining and Schechter Poultry). He then said that "the Solicitor General" invited the Court to clarify the non-delegation doctrine, citing a brief submitted in Currin v. Wallace. This Solicitor General was, of course, Robert Jackson. The Court did not take up Jackson's invitation, but the brief contains an extremely interesting analysis of the issues. As far as I can tell, though, nobody has given this brief much attention. Let me give you a few highlights:

  1. Jackson argues that congressional delegations to the President may be invalid on separation-of-powers grounds. Congressional delegations to executive agencies or independent boards, though, are permissible because Congress exercises some direct control over them.
  2. He says that Congress can delegate but may not alienate its power.
  3. He cites many examples of broad delegations at the Founding, with a special emphasis on proprietary colonial charters.
  4. He makes several telling textual points against the non-delegation doctrine.

I will take all of this up in greater detail in a separate post.

Posted by Gerard Magliocca on December 19, 2020 at 07:16 PM | Permalink


Seriously, though, Jackson's jurisprudence has some serious flaws (i.e. every enforced law is enforced ex post facto)

Posted by: thegreatdisappointment | Dec 20, 2020 11:15:56 AM

Ol' Robert "You Gotta Break the Law to Find Out What It Is" Jackson

Posted by: thegreatdisappointment | Dec 20, 2020 11:15:09 AM

Can you post a pdf of the brief?

Posted by: Brian Galvin | Dec 20, 2020 10:04:35 AM

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