If the extreme version of non-delegation took hold, it would be the end of all rational regulation. Do you REALLY want Congress writing technical documents about effective isotropic radiated power? Or the shape of curb ramps?
I don’t see how having article III remedies addresses the separation of powers issue. It just means you can kinda maybe fix up the damage afterward.
I think it’s fair to ask how far a non-delegation principle should go. There is clearly a continuum between legislation and enforcement discretion. But does that mean we should have no non-delegation principle at all? Is there a definable middle ground between Congress leaving it to executive discretion address technical minutea and Congress delegating oversight over entire sections of the economy to unelected bodies that can serve as judge, jury, and executioner?
You still have Article III remedies in that case.
If the extreme version of non-delegation took hold, it would be the end of all rational regulation. Do you REALLY want Congress writing technical documents about effective isotropic radiated power? Or the shape of curb ramps?