The "Benefits" of Non-Delegation: Using the Non-Delegation Doctrine to Bring More Rigor to Benefit-Cost Analysis


This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in court review of agency action under Chevron analysis. The article notes how Chevron and non-delegation, though from different strands of analysis, can be seen as part of one separation of powers continuum.


Administrative Law | Constitutional Law | Economics | Environmental Law | Law and Economics | Law and Society

Date of this Version

August 2006