Taking Delegations Seriously

Abstract

The non-delegation doctrine has become a flashpoint in COVID-19 litigation since March, 2020, as both state and federal authorities sought to exercise unprecedented emergency powers to control the spread of SARS-COV-2. This article examines the failure of state courts to give serious consideration of non-delegation arguments in the face of broad delegations of police powers, and the countervailing approach that the U.S. Supreme Court has taken in stressing the major questions doctrine as a bulwark against excessive delegations. In addition to examining the perverse implications of an impotent non-delegation doctrine, this article argues that the principle argument against invalidating unfettered delegations is overstated and can only potentially justify emergency orders on a short-term basis until such time as the Legislature is capable of reconvening.

Keywords: non-delegation; separation of powers