Abstract
Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly in situations in which the recipient has independent constitutional power relating to the subject of a delegation. The President has more independent constitutional power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have plenary power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies several ways in which independent power is relevant to the nondelegation doctrine, which we call situations of “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. For others, the best defense of their constitutionality (assuming a reinvigoration of the nondelegation doctrine) likely stems from longstanding historical practice—that is, “historical gloss.” The Article concludes by considering the relevance of this analysis to the application of the “major questions doctrine,” and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.
