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VILLANOVA LAW REVIEW ONLINE: TOLLE LEGE 68 VILLL. REV. TOLLELEGE 1
Note
A BLAST FROM THE PAST: REVIVAL OF THE
NONDELEGATION DOCTRINE IN JARKESY v. SEC
MADISON FITZGERALD*
Even decades after the main contours of the administrative state were
sustained by the Supreme Court, it is still under attack.1
I. AN INTRODUCTION TO ADMINISTRATIVE AGENCIES' TENSION
WITH THE LEGISLATIVE BRANCH
In an ideal world, the modern administrative state would be an exercise of gov-
ernment collaboration, but critics of the ever-expanding power given to administra-
tive agencies have been vocal about the constitutional challenges faced by the so-
called headless 'fourth branch.2 Administrative agencies are not a new feature in
government-in 1887, Congress created the first modern regulatory agency called
the Interstate Commerce Commission (ICC) when it saw a need for delegating part
of the task of regulating commerce.3 Administrative agencies are now central to
promulgating new industry rules and regulations, with the Code of Federal Regula-
tions containing 242 volumes and housing over 185,000 pages.4
The rise of administrative agencies and the extension of their influence in shap-
ing the legal landscape has triggered constitutional and administrative concerns.5
* J.D. Candidate, 2024, Villanova University Charles Widger School of Law; Colgate Univer-
sity, B.A., 2018. This Note is dedicated to my parents, Mark and Patty Fitzgerald, whose uncondi-
tional love and support has always allowed me to pursue my dreams. I would also like to thank the
members of Villanova Law Review for providing thoughtful feedback and encouragement throughout
the entire process, I could not have it without you.
1 Jack M. Beermann, The Never Ending Assault on the Administrative State, 93 NOTRE DAME L.
REV. 1599, 1599 (2018).
2 PRESIDENT'S COMM. ON ADMIN. MGMT., ADMINISTRATIVE MANAGEMENT IN THE
GOVERNMENT OF THE UNITED STATES, 1, 2, 36 (1937) (labeling independent regulatory commis-
sions as a headless 'fourth branch' of the Government, a haphazard deposit ofirresponsible agen-
cies and uncoordinated powers). Established to improve the function and organization of the
executive branch, the President's Committee on Administrative Management, chaired by Louis
Brownlow, submitted its final report that recommended improvements for administrative manage-
ment and organization of presidential duties. Id. at 2.
3 Susan E. Dudley, Milestones in the Evolution of the Administrative State, 150 DAEDALUS 33, 34
(2021) (quoting Angel Manuel Moreno, Presidential Coordination of the Independent Regulatory Process, 8
ADMIN. L.J. AM. U. 461, 467 (1994)) (explaining the impetus for the ICC and the increased number
of agencies created after 1887 that has led to the expanded scope and reach of the administrative
state). Since 1887, Congress has established various agencies to regulate interstate trade, water
and power, communications, [and] commodity exchanges in addition to other industry activities.
Id.
4 See id. at 33-34 (demonstrating the scope of agency influence based on the volume of regu-
lations issued by federal agencies over the past century). The Code of Federal Regulations, the
publication that codifies regulations issued by executive departments and agencies, is four times as
big as the U.S. Code of Laws passed by Congress, highlighting the sizable role that agencies play
today. Id. at 34.
s See Peter L. Straus, How the Administrative State Got to this Chaenging Place, 150 DAEDALUS 17,
21-22 (2021) (examining the impact of economic and social changes of the 1960s and 1970s on
administrative disputes between citizens and agencies). Concerns over government transparency,
management of welfare programs, and restructured economic regulation brought attention to pro-
cedural rights of individuals caught up in both criminal and administrative disputes with the gov-
ernment and shifted the courts' view on the nature of citizen-government relationships. Id. at 21.
The newfound due process explosion resulted in expanded ... caseloads of agencies dealing
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VILLANOVA LAW REVIEW ONLINE: TOLLELEGE
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