2010 Articles

Delegation and Judicial Review

Merrill, Thomas W.

One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power. Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making. This article explores the role of judicial review in determining the constitutionality of broad delegations of power in a world in which the intelligible principle doctrine is, for practical purposes, dead.