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Fall 2023 Seminar

The Non-Delegation Doctrine in Foreign Affairs

Prerequisite: None

Exam Type: No Exam

There is renewed interest, in the Supreme Court and in scholarship, in the nondelegation doctrine. The Court has at various times—most famously in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)—suggested that the nondelegation doctrine operates less restrictively when Congress delegates foreign affairs authority to the president. This seminar will examine in depth the justification for (if any) and proper scope of this exception. The seminar will take a comprehensive look at the history of the nondelegation doctrine (case law and historical practice) with special attention to the foreign affairs exception, and will ask in particular about how this exception should relate to various related foreign affairs law doctrines (such as the president’s authority to make congressional-executive agreements) and administrative law doctrines (such as Chevron and the major questions doctrine).

Reading will be heavy. Grades will be based on eight (8) short thought papers and class participation.