Consolidation of Powers Doctrine: A Look into the Current Viability of the Modern Delegation Doctrine

Caleb A. Harlin, Oak Brook College of Law

Abstract

This Article attempts to clarify the constitutional validity of the legislative non-delegation doctrine. First is a brief exposition of the philosophical underpinnings of both non-delegation and separation of powers concepts. Then follows a systematic debunking of three major arguments against the historical understanding of non-delegation. The “textual” argument is shown to be textually incongruous with the Constitution both negatively, by the lack of an express grant of this power, and positively, by a solitary instance of constitutional congressional delegation. The “denial” argument ignores the fundamental principles that give governmental legislation any force in a civilized society. The “pragmatic” argument fails to pass muster as well because it focuses only on maintaining the status quo without first determining the correctness of the status quo. The Article continues with a thoughtful look at the American Recovery and Reinvestment Act of 2009 in the light of the preceding discussion. The Article concludes by observing that a new constitutional doctrine seems to be at work, namely, consolidation of powers. What our country needs is a massive return to the principle of legislative non-delegation.