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Nondelegation Doctrine in Comparative Context: Britain’s Great Repeal Bill and the Shadow of Henry VIII

In their recent article, Keith Whittington and Jason Iuliano marshal considerable evidence for the proposition that the nondelegation doctrine is little more than a myth. The authors review some two thousand U.S. federal and state cases, and acknowledge that “American courts have long recognized a basic constitutional principle that legislative powers cannot be delegated to other political actors. Yet the authors also show that this principle has had remarkably little impact in practice: delegations of lawmaking authority have been upheld at high rates throughout American history by federal and state courts alike. At the Supreme Court level, “[a] review of the Court’s treatment of challenges to federal and state statutes on the grounds that they had impermissibly delegated legislative power to nonlegislative actors does not provide much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order.” In sum, notwithstanding its supposed basis in the American structural commitment to separation of powers among coequal branches of government, nondelegation doctrine has never been of much practical significance in the context of U.S. constitutional law.

But in this Response, I argue that nondelegation principles may prove to be of far greater practical significance in a different context—namely, in U.K. constitutional law. In doing so, I demonstrate that the origins of the nondelegation doctrine long predate the structural constitutional provisions and pre‐New Deal cases highlighted by Whittington and Iuliano. Indeed, questions about legislative delegations of power extend back at least as far as the reign of King Henry VIII. The Tudor monarch’s shadow is so long that parliamentary delegations of authority to amend primary legislation continue to be known as “Henry VIII clauses,” and the prospect of including such delegations in Prime Minister Theresa May’s Great Repeal Bill may well complicate Britain’s ongoing exit from the European Union. Thus, while the nondelegation doctrine may merely be a myth in the United States, it is poised to play a key role in one of the most important constitutional debates in recent memory in the United Kingdom.