The non-delegation doctrine, with its demand that congressional delegations of power be accompanied by an ¿intelligible principle,¿ looks like it might impose some constraints on Congress¿s delegations of power, but a longstanding and often ignored branch of the doctrine provides that the intelligible-principle requirement is significantly relaxed when the delegate has independent authority over the subject matter. I call this the ¿Inherent-Powers Corollary.¿ Even when the delegate lacks independent authority over the subject matter, the intelligible-principle requirement is still relaxed when the subject of the delegation is interlinked with an area where the delegate has independent authority. I call this dubious extension to the Inherent-Powers Corollary the ¿Interlinking Extension.¿ The non-delegation doctrine applies to any delegate that Congress may choose, including courts. I argue that, because courts have many inherent or quasi-inherent powers, the Corollary and Extension save many congressional delegations to courts that one might otherwise think suspect.
Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol66/iss6/3