Nondelegation, constitutional law, nondelegation, American Trucking, federal common law, separation of powers, statutory construction, avoidance canon, formalism, functionalism, environmental law
This article asks whether courts or administrative agencies have constitutional authority to narrowly construe statutes to save them from truly serious nondelegation claims. It explains why the Court correctly rejected administrative saving construction in American Trucking Ass'ns v. Whitman, and why the rationale supporting this rejection applies to courts as well as to agencies. This article also questions recent arguments that the nondelegation doctrine has found a new and appropriate home among canons of statutory construction. Judicial saving construction could lead to great expansion of judicial authority to make public law at the expense of the more democratic branches of government. A proper understanding of the role delegated authority plays in establishing the federal common law making authority of courts and agencies shows that grave doubt about the constitutionality of a statute under the nondelegation doctrine should create equally grave doubt about the constitutionality of administrative or judicial saving construction.
Driesen, David M., "Loose Canons: Statutory Construction and the New Nondelegation Doctrine" (2002). College of Law Faculty Scholarship. Paper 26.
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