[The third of four blog posts drawing on this week's Hallows Lecture at Marquette Law School.]
It is not just the "three buckets" picture, in combination with the unitary executive theory, as discussed in my first two blog posts, that has warped the design of the U.S. Constitution. A second "unstated idea," the topic of this third post, concerns the delegation of authority by Congress.
There is, of course, the longstanding complaint that delegations by Congress should be reined in, so as to force Congress to legislate greater specificity. This has given us agitation, most prominently by Justice Gorsuch, to overturn the longstanding doctrine that delegations are permissible as long as they include an "intelligible principle" guiding the exercise of discretion—the claim being that a more restrictive doctrine is required. More recently, it has given us the major questions doctrine, which says that far-reaching and controversial exercises of delegated authority will be set aside by the courts absent clear authorization by Congress. These are not unstated ideas—they are quite vigorously asserted and debated.
