May 20, 2021


On May 17, as part of their annual Executive Branch Review Conference, the Federalist Society’s Practice Groups hosted an expert panel on the non-delegation doctrine.

Whether as the result of hyper-partisanship or as a residue of the constitutional design for lawmaking, government by executive “diktat” is lately increasing.  Many of these executive actions appear to have dubious—if any—statutory authority, but the courts have been reticent to validate objections along these lines.  The U.S. Supreme Court has indicated a willingness to revisit and possibly to reinvigorate the non-delegation doctrine (with 5 Justices adhering to that view publicly), or at least to put some teeth into its supposedly constraining intelligibility principle.  To do so, the Court first will have to grapple with whether Article I, Section 1 of the Constitution contains a non-delegation principle at all.


  • Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
  • Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School
  • Prof. Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School
  • Prof. Nicholas Parrillo, William K. Townsend Professor of Law, Yale Law School
  • Moderator: Hon. Neomi Rao, United States Court of Appeals, D.C. Circuit

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Federalism & Separation of Powers Practice Group · Administrative Law and Regulation Practice Group


Prof. Philip A. Hamburger

Prof. Jennifer L. Mascott

Neomi Rao

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