NONDELEGATION’S TWO FACES.

Delegated power is under attack from many sides. From the beginning of the American republic, lawmakers have built institutions with the understanding that they could assign power from one individual or institution to another. This principle has been fundamental to the American system of power in many forms—delegation of legislative, executive, and judicial power—both between branches and within them. Now, this model might be about to transform beyond recognition. Our Supreme Court is feeling its power. Their antidelegation program has many facets. But two have been most prominent in the jurisprudence of the past few years: frst, delegation of Article I lawmaking power to administrative agencies and, second, delegation of Article II enforcement power to private litigants. This Article makes the case that the Court’s recent moves in these two domains are part of a unifed program. They are twin strands in a broad-based effort to limit the scope and reach of delegated authority. Scholars have long been aware of the growth of both prongs of this analysis. But the doctrine is shifting under our feet, taking on new characteristics, and gaining a new coherence that sometimes even crosses the ideological divide between liberal and conservative jurists. As it takes shape, the Court’s antidelegation jurisprudence threatens to disrupt some of the basic contours of our system of governance. A well-established regime based on delegation may be forced to bow to an idealized and likely ahistorical vision of the past. [ABSTRACT FROM AUTHOR]