Statutory and Administrative Limitations on Private Delegations

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NONDELEGATION, SUBDELEGATION, AND DISCRETIONARY ACTS Once an inherent government power is identified, can it be delegated at all? The nondelegation doctrine does not go that far. In both its Article I and due process faces, the doctrine is about process. The nondelegation requirement is satisfied if Congress provides an “intelligible principle” for the Executive to follow. As was discussed in Chapter 5, the constitutional constraints on delegation are exceedingly difficult to enforce. Carter Coal does, however, call for procedural mechanisms that require government rather than private officials to exercise public power. But certain government functions may be so fundamental as not to be transferable to private hands under any circumstances. Acts of government committed to high officials, including the president, who have taken oaths to uphold the Constitution are especially sensitive. However, calling some government acts nondelegable does not identify them. What are the functions of g

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