Become part of the movement for unbiased, accessible election information. Donate today.
Resuscitating The Nondelegation Doctrine Video
Nondelegation:
Navigate through this content:
Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment:
Video Transcript:
This video is about the article “Resuscitating the Nondelegation Doctrine: A Compromise and an Experiment” by attorney A.J. Kritikos. In the first two readings for this course, we reviewed arguments for and against the nondelegation doctrine. In this third reading, we look at a practical approach to applying the nondelegation doctrine by examining the doctrine at the state level.
Author A.J Kritikos writes about Florida’s flexible interpretation of the nondelegation doctrine and how it can provide a workable model for the federal judiciary. Though the doctrine hasn’t been applied since 1935, Kritikos argues it hasn’t been overturned either.
In looking to the state courts as an example for the federal judiciary, Kritikos focuses on how Florida has chosen to interpret the nondelegation doctrine. On the one hand, Florida allows agencies to make rules about technical problems. On the other hand, the power to make fundamental policy choices is reserved for the legislature.
Florida also applies the nondelegation doctrine differently in civil cases and criminal cases.
In civil cases, Florida limits vague delegations of authority to administrative agencies but allows for the delegation of technical issues, such as cost-recovery mechanisms for nuclear power plants. The specific test used in Florida civil cases is whether the guiding statute issued by the legislature makes the primary policy decision. If the statue makes the policy decision, the delegation is allowed. However, if the primary policy decision is open-ended and made instead by the entity receiving the delegation of authority, then the delegation is prohibited.
Florida applies the nondelegation doctrine differently in criminal cases. Florida enforces a strict nondelegation doctrine when the law allows the executive branch to define a crime, which prevents the executive and administrative agencies from using their delegated authority to establish criminal penalties.
Kritikos claims that Florida’s flexible approach to the nondelegation doctrine, which allows for technical expertise but limits the establishment of criminal penalties by non-lawmakers, can serve as a model for the federal judiciary to enforce the nondelegation doctrine.
