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15 Elon L. Rev. 1 (2023)

handle is hein.journals/elonlr15 and id is 1 raw text is: ARTICLES NONDELEGATION AND JUDICIAL AGGRANDIZEMENT ALLEN C SUMRALL* Opponents of the administrative state have chosen doctrine, not legislation, as their preferred tool to restructure administrative govern- ance in the United States. As a result, courts may soon decide that the nondelegation doctrine is insufficiently robust. While the justifi- cation for giving teeth to the nondelegation doctrine typically rests on trying to democratize the administrative state or to encourage Congress to speak more precisely creating a robust nondelegation doctrine would, however, only empower the courts at Congress's ex- pense. This Article argues that making a robust nondelegation doctrine would be an example of judicial self-aggrandizement. To explain why the Supreme Court would only be empowering itself this Article describes judicial aggrandizement and argues that it is best understood as a type of institutional change motivated by ideas. Drawing on original research on William Howard Taft and his decision in J.W. Hampton, Jr., & Co. v. United States, this Article demonstrates that ideas about judicial empowerment structured the initial shifts from a separation-of-powers system into a separation-of-powers doctrine that courts must enforce. Taft successfully used Supreme Court decisions to aggrandize the Supreme Court and the judiciary as a whole. The same ideas continue to structure the courts' role in the constitutional system. Creating a robust nondelegation doctrine requires endorsing * Ph.D. Candidate, Department of Government, University of Texas at Austin; J.D., University of Texas School of Law. The author would like to thank Josh Chafetz, Thomas Bell, Jeff Tulis, HW Perry, Jr., Dan Brinks, Jordan Carr Peterson, Pat Sobkowski, Beau Baumann, John Dearborn, Calvin TerBeek, Chris Wlezien, Tara Ginanne, Gary Jacobsohn, Kevin Burns, and Justin Crowe. (1)

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