Delegation Really Running Riot

Essay — Volume 93, Issue 4

93 Va. L. Rev. 1035
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Conventional delegations—statutes delegating Article I, section 8 authority—are familiar enough and have spawned a large literature regarding their constitutionality. We wish to shift the focus to delegation of other powers. Starting from the assumption that conventional delegations are constitutional, we ask whether Congress may delegate other congressional powers, such as those found in Articles II, III, and IV. For instance, we consider whether Congress may delegate the power to admit states and to propose amendments to the Constitution. We also consider whether Congress may delegate cameral authority, such as the House’s ability to impeach and the Senate’s ability to confirm nominations. Finally, we address whether the Congress may delegate powers to other entities and in the process circumvent or evade powers granted to other branches. We conclude that if one accepts the constitutionality of conventional delegations, one must likewise accept the constitutionality of all manner of unconventional delegations. If the Necessary and Proper clause permits the making of laws outside of the Article I, section 7 process, it likewise permits the approval of treaties outside the Article II, section 2 process. And the same is true for the other unconventional delegations we discuss here. In this way, the delegation of cameral and bicameral power can be a means for “altering,” or at least evading, the structural Constitution’s most notable features. 

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  Volume 93 / Issue 4  

Structural Reform Prosecution

By Brandon L. Garrett
93 Va. L. Rev. 853

Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty

By Nestor M. Davidson
93 Va. L. Rev. 959

Delegation Really Running Riot

By Larry Alexander and Saikrishna Prakash
93 Va. L. Rev. 1035

Entrapment, Punishment, and the Sadistic State

By Andrew Carlon
93 Va. L. Rev. 1081