Hunting for Nondelegation Doctrine’s Snark
This piece is a response to Ben Silver, Nondelegation in the States, 75 VAND. L. REV. 1211, 1221 (2022).
There is much to like about Silver’s article: it is analytically sharp, doctrinally comprehensive, and written with clarity and grace. Moreover, on the substance, Silver is surely correct that one cannot understand judicial concerns about delegation without accounting for courts especially disfavoring certain sorts of delegatees. It is a familiar point, for instance, that state courts often express special suspicion of delegations to private organizations, noting that private actors’ self- interest and lack of any electoral tie to voters undermines popular control of lawmaking. With admirable ambition to synthesize the doctrine, Silver insists that “the Sovereignty view of nondelegation must not be conflated with a straightforward rule against delegations to private entities.”Instead, “the rule against private delegations is a particular instance of a much broader rule against delegating outside the state government,” encompassing judicial decisions limiting delegations to private parties, municipalities, plebiscites, or municipal corporations.
I am inclined, however, to be skeptical about the explanatory force of Silver’s separation-of-powers/sovereignty dichotomy. As I explain in more detail below, the judicial concerns underlying suspicion of municipalities, plebiscites, and private organizations are simply too divergent to be explicable as manifestations of some single impulse to protect the abstract value of sovereignty.
Roderick M. Hills, Jr.