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Abstract

For nearly 200 years, legal authorities from the Supreme Court to the Restatements to several attorneys general, have relied on a legal maxim to consistently conclude that duties requiring judgment assigned to one officer by Congress cannot be redelegated to another without express statutory authority. As a result of this black-letter-law maxim, hundreds of statutes have been enacted to carefully grant express, targeted delegation authority to specific officers.

But particularly in the last twenty years, this once-solid maxim been flipped on its head. Now, instead of looking for an officer’s express authority to redelegate to a subordinate, also known as “subdelegation,” a growing number of recent courts blanketly assume the ability of any federal officer to subdelegate and solely look for express authority to prohibit it. However, inverting this legal inquiry only came about due to misreadings of case law and a fading familiarity with key principles—not any intentional legal shift.

Following these contemporary courts, many modern scholars now presume the same. But amid numerous commentaries reviewing the practical implications of delegation, no known work has reviewed or challenged recent courts’ legal shift of the once-stalwart principle. This Article is the first to address that topic with sorely needed scholarship.

By tracing the legal history underpinning delegation, including by highlighting differences between public and private agency, shedding light on early practices, identifying statutes written precisely because of the delegation maxim, and tracing how the recent court split occurred, and then grew, this Article aims to recover and defend a view counter to this recent trend.

This topic has significant practical importance. It goes to the core of how government functions and who has the authority to do what. Moreover, it implicates constitutional concerns in both Appointments Clause questions and separation of powers safeguards, particularly since unbounded delegation risks the legislative branch losing two of its vital structural checks on the executive branch.

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