Intelligible Principle Test, Nondelegation, Securities and Exchange Commission (SEC), Administrative Law Judges, Separation of Powers, Congress


Whether by avalanche or a thousand cuts, the intelligible principle test may be awaiting its untimely demise at the behest of a reinvigorated nondelegation movement. Perhaps looking to speed up the decomposition, the Fifth Circuit in Jarkesy v. Securities and Exchange Commission struck down the SEC’s discretion to pursue enforcement actions with its own Administrative Law Judges or in federal court as unconstitutionally delegated legislative power. This Note posits that Jarkesy was rightly decided but rife with uncompelling reasoning. Establishing this requires a detour into the meaning of the Necessary and Proper Clause, the significance of the separation of powers, and the interplay between executive and legislative authority. In so doing, this Note proposes a refined nondelegation test that more clearly categorizes the powers that Congress may or may not constitutionally delegate and offers a novel conception of legislative power emphasizing constitutional text. The result is a blueprint that neither defends nor attacks the intelligible principle test but can nonetheless be used as a basis for either. On the one hand, this proposal may provide a spirited framework for asserting that a modified intelligible principle test is constitutionally agreeable and not just practically preferable in a modern society. On the other hand, this proposal endorses a more exacting categorical test that builds on Justice Gorsuch’s framework and advocates for more robust enforcement of nondelegation generally.



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