Eli Nachmany has posted Bill of Rights Nondelegation (49 BYU L. Rev. (forthcoming 2023)) on SSRN. Here is the abstract:
Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine appears to be making a comeback.
The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. Although the nondelegation doctrine appears to be about limiting Congress, the doctrine’s ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly—and rigorously—applying the doctrine in a different context: In litigation concerning various provisions of the Bill of Rights, the Court has enforced a nondelegation principle to constrain the delegation of unfettered discretion to the executive.
The uncovering of a Bill of Rights nondelegation doctrine reveals that, contrary to popular belief, the Court has been applying some form of nondelegation in an active manner for many years. Recognizing a Bill of Rights nondelegation doctrine could have important implications for Bill of Rights jurisprudence writ large. Further, understanding the “Bill of Rights nondelegation doctrine” as a coherent line of cases separate from what this Article calls the “Article I nondelegation doctrine” helps to clarify the connection that some have pointed out between the nondelegation principle and certain parts of the Bill of Rights.
From the First and Second Amendments to the Fourth and Fifth Amendments, the Bill of Rights nondelegation doctrine prevents the delegation of unfettered discretion when enumerated rights are at stake.
Interesting and recommended.