The Download of the Week is The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine by Margaret H. Lemos. Here is the abstract:
The nondelegation doctrine is the subject of a vast and ever-expanding body of scholarship. But nondelegation literature, like nondelegation law, focuses exclusively on delegations of power to administrative agencies. It ignores Congress’s other delegate – the federal judiciary.
This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with respect to agencies, the constitutional principles underlying the doctrine apply with full force to delegations to courts. In principle, then, the nondelegation doctrine extends equally to both of Congress’s delegates. In practice, matters are more complicated. Despite judicial rhetoric to the contrary, virtually unlimited delegations to agencies long have been tolerated, even welcomed. To the extent the modern Court has enforced the nondelegation doctrine in the administrative context, it has been through narrow statutory construction rather than constitutional decree. The narrow-construction strategy does not make sense as a means of limiting courts’ own discretion, however. Nor do the functional arguments that have been offered in defense of a hands-off attitude toward broad delegations to agencies work when applied to courts. Far from justifying nondelegation law’s inattention to courts, considerations of institutional structure and capacity suggest the need for careful evaluation of statutes administered by unelected, generalist judges.
To be sure, the features that set courts apart from agencies also may make them particularly valuable delegates in certain areas of the law. The goal of this Article is not to condemn all delegations to courts, but rather to demonstrate that they warrant more attention than they currently receive. There has been a robust debate about the constitutional permissibility and functional desirability of delegations to agencies. We need to have a similar conversation about delegations to courts.
And here is some more from the text:
But if judges inevitably make some law in the course of deciding cases, perhaps that itself is reason to distinguish between courts and agencies for purposes of the nondelegation doctrine. For example, given the Framers’ experience with the common law tradition, it may be tempting to suggest that the phrase “the judicial power” in Article III necessarily connotes a lawmaking function. Yet those who have studied the issue have denied that anything useful can be gleaned about the founding generation’s understanding of “the judicial power.” The problem is in part a paucity of relevant evidence166 and in part changed understandings. Recall that, at the time the Constitution was adopted, the prevailing understanding of common law judging was that common law principles were out there, waiting to be "discovered" and applied by judges.167 Accordingly, even if it were clear that the Framers believed that the judicial power included the power to render decisions in the common law tradition, there would still be reason to doubt that their understanding of the judicial power included the capacity to make law in the creative, policy-driven way that we understand that term today.168
Highly recommended.