Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation

Merrill, Thomas W.

The first substantive clause of the Constitution -- providing that "[a]ll legislative Powers herein granted shall be vested in a Congress" -- is associated with two postulates about the allocation of legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legislative power. The second is the exclusive delegation doctrine, which says that only Congress may delegate legislative power. This Article explores the textual, historical, and judicial support for these two readings of Article I, Section 1, as well as the practical consequences of starting from one postulate as opposed to the other. The Article concludes that exclusive delegation is superior to the nondelegation doctrine, either in its present unenforced version, or if it were enforced more strictly. The nondelegation doctrine demands that Congress constrain the discretion of agencies by resolving, at some level, specific policy disputes. The exclusive delegation doctrine requires that Congress consider who is to resolve policy disputes and over what domain of controversies. Given the realities of modern government, Congress is better suited to answer questions about which institution should make policy than it is to make policy itself. The exclusive delegation doctrine would reorient understanding of the allocation of legislative power in a way that provides a better fit with institutional realities, and yet would also preserve an important measure of exclusive power to Congress as the first branch of our national government.


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November 4, 2015