Monday, August 31, 2009

Cite-checking Quote of the Day

The only good thing about looking for a pincite in a 78 page article is that sometimes you come across fun passages:
The nondelegation doctrine, however, is the Energizer Bunny of constitutional law: No matter how many times it gets broken, beaten, or buried, it just keeps on going and going....the combined vote in the Supreme Court on nondelegation issues from Mistretta through American Trucking was 53-0.

[Yet] Modern scholars have been no more willing than have litigants or lower court judges to give up on the nondelegation doctrine....the Court's decision in Loving v. United States, which unanimously rejected a nondelegation challenge in the context of the death penalty, spawned an entire academic conference on the nondelegation doctrine with the imposing title, "The Phoenix Rises Again."

And the footnote to that last sentence is where it gets really fun:
The published proceedings of the conference can be found at Symposium, The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives, 20 Cardozo L. Rev. 731 (1999). I do not want to be misunderstood as in any way criticizing this outstanding conference. The conference brought together a truly amazing collection of talent, and the published works amply justify the enterprise. My point is only that it is difficult to read the Court's remarks in Loving as signaling the rebirth of the nondelegation doctrine. The most that one can say is that Loving did not casually dismiss the plaintiff's nondelegation argument as a near-sanctionable waste of time. That is a thin reed on which to balance one's hopes for the rise of the phoenix.

Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 330-32 & n. 22 (2002).

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