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The False Promise of the "New" NonDelegation Doctrine

dc.contributor.authorRossi, Jim, 1965-
dc.contributor.authorSeidenfeld, Mark
dc.identifier.citation76 Notre Dame L. Rev. 1 (2000-2001)en_US
dc.description.abstractThis essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in "American Trucking Association, Inc. v. EPA", 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law serves three primary functions: it reduces uncertainty; it minimizes the likelihood of government tyranny; and it helps to assure political accountability. Judicially enforced ex ante constraints, however, are not necessary to perform any of these functions, and may even undermine some of them. In addition, the rule of law is not the be-all and end-all of regulatory systems. There are countervailing benefits to a system that allows for regulatory flexibility. Although there may be some role for ex ante constraints in controlling agency discretion, the factors that determine the means of limiting agency discretion are political rather than legal in nature. Thus, imposition of ex ante limitations is best left to the political process--not to courts.en_US
dc.format.extent1 document (21 pages)en_US
dc.publisherNotre Dame Law Reviewen_US
dc.subjectAmerican Trucking Association, Inc. v. EPAen_US
dc.subject.lcshAdministrative law -- United States -- Casesen_US
dc.subject.lcshEnvironmental policy -- Law and legislation -- United Statesen_US
dc.subject.lcshEnvironmental law -- United Statesen_US
dc.subject.lcshDelegated legislation -- United Statesen_US
dc.titleThe False Promise of the "New" NonDelegation Doctrineen_US

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