Constitutional Infirmities of the Emergency Economic Stabilization Act of 2008 (“EESA”)

This memorandum explains the importance of the “nondelegation” principle to our constitutional system and concludes that EESA unconstitutionally violates that principle by delegating such a broad lawmaking power to the Secretary. Part I recounts the original understanding of the nondelegation principle, explaining its roots in the Constitution’s history, text, and structure. Part II explains how the Supreme Court has interpreted and applied the nondelegation principle. Part III applies the principle to EESA, explaining why we believe EESA entails an unconstitutional delegation.