Taking Non-Delegation Doctrine Seriously
The non-delegation doctrine has become a flashpoint in COVID-19 litigation since March, 2020, as both state and federal authorities sought to exercise unprecedented emergency powers to control the spread of SARS-COV-2. With the notable exception of the Michigan Supreme Court, state courts failed to give serious consideration of non-delegation arguments in the face of broad delegations of police powers. They did so largely on the view that open-ended delegations were necessary. This article examines that claim and concludes that the necessity defense is both doctrinally flawed and overstated as a practical matter. In addition to examining the perverse implications of an impotent non-delegation doctrine, this article concludes that the necessity defense can only justify emergency orders on a short-term basis, until the legislature is capable of reconvening. Because most state courts allowed continuing emergency powers for months on end, they played a part in the breakdown in the rule of law—a general lawlessness that pervaded many states into 2021. By contrast, this article examines the countervailing approach that the U.S. Supreme Court took at the federal level in stressing the major questions doctrine as a bulwark against excessive delegations during the pandemic.
