medium · LSAT Reading Comprehension

For nearly a century, American courts have tolerated a striking feature of the modern regulatory state: Congress routinely enacts statutes that announce broad objectives - "just and reasonable" rates, air quality "requisite to protect the public health" - and then entrusts unelected administrators with translating those phrases into binding rules. The constitutional principle that ostensibly forbids such arrangements, the nondelegation doctrine, holds that legislative power is vested exclusively in Congress and may not be transferred to other actors. Yet since 1935 the Supreme Court has not once invalidated a statute on nondelegation grounds, requiring only that Congress supply an "intelligible principle" to guide the delegate's discretion - a threshold so forgiving that even the vaguest mandates have satisfied it. A vocal group of jurists now urges the doctrine's revival. On their account, the intelligible-principle test has become a rubber stamp that permits Congress to duck politically costly choices, handing them to agencies that face no electoral accountability. Restoring a meaningful limit, they argue, would force legislators to resolve the hard questions themselves, thereby honoring the Constitution's careful allocation of lawmaking authority and reinvigorating democratic responsibility. The revivalists' diagnosis is not without force, but their proposed cure invites difficulties they tend to understate. First, the line they would draw - between permissible directives to "fill up the details" and impermissible transfers of policymaking discretion - has proven notoriously resistant to principled formulation. The very generality that makes a statute suspect is often what makes it workable, for Congress cannot anticipate every contingency a regulatory scheme must address. Second, a rigorously enforced doctrine would not so much return power to Congress as freeze the regulatory status quo, since a legislature unable to delegate may simply prove unable to act at all. The practical consequence of demanding that Congress decide everything is frequently that nothing gets decided. None of this is to deny that delegation carries real costs to accountability. But the revivalists err in treating those costs as though they were incurred in a vacuum. Agencies operate under procedural constraints - notice-and-comment rulemaking, reasoned-explanation requirements, judicial review for arbitrariness - that impose their own, arguably more searching, form of discipline than a floor debate. A rule that must survive challenge as unreasoned is subject to a scrutiny that no statute faces. To fixate on the moment of delegation, while ignoring the dense web of oversight that governs its exercise, is to mistake a part for the whole. The sounder course is neither wholesale revival nor complacent acceptance. Courts might, for instance, calibrate their scrutiny to the stakes: demanding clearer congressional authorization when an agency claims power over questions of vast economic or political significance, while leaving ordinary delegations undisturbed. Such an approach would target the accountability deficit where it bites hardest without hazarding the paralysis that a general revival threatens. Whether courts possess the institutional competence to draw even that narrower line remains, admittedly, an open question - one the revivalists' confident rhetoric too often obscures.

The author's attitude toward the jurists who urge reviving the nondelegation doctrine is best described as

  1. Wholly dismissive of their diagnosis as being without merit
  2. Dismissive because the author regards revivalists as motivated solely by partisan hostility toward administrative government.
  3. Detached and noncommittal, expressing no evaluation of their position
  4. Enthusiastically supportive of the general revival they propose
  5. Sympathetic to the concern but skeptical of proponents' confident remedy.

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