The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine

In The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine, leading scholars consider a revival of the Constitution’s nondelegation doctrine―the separation-of-powers principle that bars Congress from transferring its legislative powers to the administrative agencies. Although the nondelegation doctrine has lain dormant since 1935, some Supreme Court justices have recently called for its return. As the Supreme Court takes up the doctrine in current cases, this volume makes a timely contribution to our understanding of the separation of powers and the Constitution.

Peter J. Wallison is a senior fellow emeritus at the American Enterprise Institute, where he studies constitutional law and the growth of the administrative state. His earlier work at AEI focused on government housing policy, the government-sponsored enterprises Fannie Mae and Freddie Mac, and the government mortgage complex. He was also a member of the Financial Crisis Inquiry Commission and wrote a dissent from its majority report. Mr. Wallison served as a White House counsel under President Ronald Reagan. As the US Treasury Department general counsel in the same administration, he played a significant role in developing the Reagan administration’s proposals for the deregulation of the financial services industry. Mr. Wallison is the author of many books, including Judicial Fortitude: The Last Chance to Rein in the Administrative State (Encounter Books, 2018), Hidden in Plain Sight: What Really Caused the World’s Worst Financial Crisis (Encounter Books, 2015), and Ronald Reagan: The Power of Conviction and the Success of His Presidency (Westview Press, 2004). In addition, he is the coauthor or editor of Competitive Equity: A Better Way to Organize Mutual Funds (AEI Press, 2007); Privatizing Fannie Mae, Freddie Mac, and the Federal Home Loan Banks: Why and How (AEI Press, 2004); The GAAP Gap: Corporate Disclosure in the Internet Age (AEI Press, 2000); and Optional Federal Chartering and Regulation of Insurance Companies (AEI Press, 2000).

John Yoo is a nonresident senior fellow at the American Enterprise Institute; Emanuel S. Heller Professor of Law at the University of California, Berkeley; and a visiting fellow at the Hoover Institution. He has worked in all three branches of government, notably as an official in the US Department of Justice, where he worked on national security and terrorism issues after the September 11 attacks. He also served as general counsel of the US Senate Judiciary Committee under its chairman, Orrin Hatch of Utah. And he has been a law clerk for Supreme Court Justice Clarence Thomas and US Court of Appeals Judge Laurence Silberman. He is the author of several books, including Defender in Chief: Donald Trump’s Fight for Presidential Power (St. Martin’s, 2020), Point of Attack: Preventative War, International Law, and Global Welfare (Oxford University Press, 2014), Taming Globalization: International Law, the U.S. Constitution, and the New World Order (Oxford University Press, 2012), Crisis and Command: A History of Executive Power from George Washington to George W. Bush (Kaplan Publishing, 2010), War by Other Means: An Insider’s Account of the War on Terror (Atlantic Monthly Press, 2006), and The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (University of Chicago Press, 2005).