Nondelegation in Winter (Again)

Last term, the Supreme Court – these days thought to be intensely interested in reviving a formalist separation of the branches of government – has finally abandoned the quintessence of that project, a revitalization of the nondelegation doctrine. This essay argues that the Court’s decision in FCC v. Consumers’ Research reflects a pragmatic turn: rather than rewriting the test for nondelegation, the Court retained the old test, gave up on formalist reform, and indicated that it will be looking elsewhere for separation of powers remedies. The result is a jurisprudence that remains formally attached to its precedents while embracing the realist insight that modern governance requires broad statutory delegations and that a peek at the effects of a rule is an important part of rule evaluation. We can hope that the Consumers’ Research opinions reinject functionalism into separation of powers formalism.