John Yoo
Biography
American Enterprise Institute
Publications
Rational nondelegationNondelegation has risen from the dead. In the United States, the doctrine stands for the proposition that the Constitution forbids Congress from transferring excessive power to the executive branch to issue rules and make decisions with the force of law. “[T]he legislature makes, the executive executes, and the judiciary construes the law,” Chief Justice John Marshall observed in Wayman v. Southard. Nevertheless, he wrote, “the maker of the law may commit something to the discretion of the other departments.” In upholding a federal statute allowing the courts to set their rules of procedure, Chief Justice Marshall acknowledged that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.”