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Monday, February 01, 2021

Unconstitutional Delegations to the President

Before the insurrection at the Capitol, I was posting about my discovery of Robert Jackson's 1938 brief as Solicitor General on the non-delegation doctrine. I am now writing up a paper on Currin v. Wallace and how Jackson's brief in that case clarifies some of the things that he said in Youngstown.

One payoff from the paper will be that there is a valid argument that Congress cannot delegate power directly to the President under some circumstances. The most obvious example would be the National Emergencies Act, which was much discussed under the Trump Administration. While there are fine policy arguments for revisiting that statute, there are also constitutional arguments that could be raised against a current or future invocation of the Act.

Jackson's analysis also provides an alternative explanation for the Supreme Court's holding in Clinton v. City of New York. In Clinton, the Court held that the Line Item Veto Act was invalid for giving the President a rescission power over specific appropriations. The Court reached that conclusion based on its decision in Chadha and on its understanding of the Presentment Clause in Article One. That's all fine, but you can also say that the problem was the Congress delegated a core legislative power (over spending) directly to the President with few meaningful limitations. Maybe you can say the same about aspects of the National Emergencies Act.

Posted by Gerard Magliocca on February 1, 2021 at 12:22 PM | Permalink


Well that is an even more bold denial of reality than typical for you. What is your weirdly distorted version of the world that denies that what I wrote happened?

Posted by: anon3 | Feb 2, 2021 9:52:15 AM


Exactly! Except for that made up scenario that never actually happened.

Posted by: thegreatdisappointment | Feb 2, 2021 12:08:54 AM

"in which nobody actually tried to overthrow the government"

Except for the thousands of armed individuals using violence in an attempt to prevent the counting of the electoral college votes in the hopes of ensuring that the outgoing (and electoral college loser) administration remains in power.

Posted by: anon3 | Feb 1, 2021 5:50:33 PM

Ah, the insurrection in which nobody actually tried to overthrow the government.

Posted by: thegreatdisappointment | Feb 1, 2021 4:05:16 PM

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