One of the subthemes in the delegation debate concerns the importance of judicial review. The Supreme Court has often upheld broad delegations to administrative actors and in so doing has pointed out that judicial review is available to safeguard citizens from the abuse of unconstrained government power.1 Broad delegations of power to executive actors are constitutionally permissible, the Court has suggested, in significant part because courts stand ready to assure citizens that the executive will discharge its discretion in a manner consistent with Congress's mandate and in a fashion that otherwise satisfies the requirements of reasoned decision making.2
Administrative law professors have underscored this point. Professor Kenneth Culp Davis, in his inimitable style, took the theme to the utmost extreme. He argued that what is really significant about the nondelegation doctrine is not that Congress must provide an intelligible principle, but that judicial review is available to make sure that administrative agencies follow the principle.3 What matters is that someone, somewhere, supplies a standard for the exercise of administrative discretion and that the courts can enforce this standard.4 It does not really matter where the standard comes from. Congress might supply it, but so too might an agency or even a court. The important thing is to have some standard to control discretion, plus judicial review.
Thomas W. Merrill,
Delegation and Judicial Review,
Harv. J. L. & Pub. Pol'y
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/827