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Tag Archives: non-delegation doctrine
While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority. Current case law is mostly bounded in the reality of current politics. Some conservatives want courts to disrupt the way things currently operate.
Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity. Congress then delegates responsibility for filling in the details to some department or agency. To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives). Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs. The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.