Nondelegation doctrine
Based on Nondelegation doctrine
The Constitutional Question Nobody Wants to Answer
Here's a puzzle that has bedeviled democracies since their invention: The people elect representatives to make laws. But those representatives keep handing off the actual lawmaking to unelected bureaucrats. Is that allowed?
This is the nondelegation doctrine in a nutshell. It sounds like an obscure legal technicality—and for decades, courts treated it that way. But it sits at the heart of how modern government actually works, and whether that arrangement is constitutional.
The principle seems straightforward enough. When a constitution grants power to a specific branch of government, that branch cannot simply pass its authority along to someone else. You were elected to legislate. So legislate. Don't write vague laws and let agencies figure out the details.
Except that's exactly what happens constantly, and has for nearly a century.
The Philosophical Roots
The intellectual foundation for nondelegation goes back to John Locke, the seventeenth-century English philosopher whose ideas deeply influenced America's founders. In 1690, Locke laid out the argument with crystalline clarity:
The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others.
Think about the logic here. The people grant power to their legislators. That's a specific gift, given with specific expectations. The people did not authorize those legislators to create sub-legislators. They chose certain representatives to make laws, not to outsource the job.
Locke went further, emphasizing that citizens cannot be bound by laws made by people they never chose or authorized. The whole point of representative government was that the representatives would do the representing—not appoint proxies.
How America Bent the Rule
For the United States, the nondelegation doctrine flows from the very first sentence of Article One of the Constitution: "All legislative Powers herein granted shall be vested in a Congress of the United States." All. Not some. Not most. All.
But almost immediately, reality complicated the theory.
One of the earliest tests came in 1825, in a case called Wayman v. Southard. Congress had given the federal courts power to establish their own procedural rules. Was that constitutional? After all, setting rules is a legislative function.
Chief Justice John Marshall—one of the most consequential jurists in American history—found a way to make it work. He distinguished between "important" subjects and "mere details." Congress could establish general principles, he reasoned, and then authorize others to fill in the specifics. This became known as the "fill up the details" doctrine.
It was an elegant compromise. It was also a door that would swing wider over time.
The Rise of the Intelligible Principle
By 1928, the Supreme Court had developed what became the dominant test for delegation: the "intelligible principle" standard. In J.W. Hampton, Jr. & Co. v. United States, the Court ruled that Congress could delegate authority to the executive branch as long as it provided some guiding principle for how that authority should be exercised.
The Court acknowledged the practical reality of governance:
In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.
Notice what's happening here. The Court isn't saying delegation is forbidden. It's saying delegation must come with instructions. Congress can grant power, but it must explain what the recipient should do with it.
The "intelligible principle" test proved remarkably flexible. Consider how agencies like the Food and Drug Administration operate. Congress didn't specify which food additives are dangerous or exactly how drug trials should work. Instead, it gave the FDA a broad mandate to protect public safety and prevent false advertising. The agency then develops the specific rules—deciding what counts as dangerous, what evidence proves efficacy, what warnings appear on labels.
The Internal Revenue Service works similarly. Congress sets the tax rates, but the IRS determines how taxes are actually collected—the forms, the deadlines, the procedures for audits and appeals.
Is this lawmaking by another name? Critics say yes. Defenders say it's merely implementation.
The Brief Rebellion of 1935
There was one extraordinary year when the Supreme Court actually struck down federal laws for violating the nondelegation doctrine. That year was 1935, in the depths of the Great Depression.
President Franklin Roosevelt's administration had pushed through the National Industrial Recovery Act, an ambitious attempt to stabilize the economy through government coordination of industry. The law gave the President sweeping powers to approve "codes of fair competition" for various industries. The idea was that businesses themselves would draft these codes, and the President would approve them.
In Panama Refining Co. v. Ryan, the Court struck down a provision allowing the President to prohibit interstate shipment of petroleum exceeding certain quotas. The fatal flaw? Congress had set "no criterion to govern the President's course." It was a blank check.
Months later, in Schechter Poultry Corp. v. United States—often called the "sick chicken case" because it involved poultry that allegedly didn't meet sanitary standards—the Court went further. The law let businesses roam at will in drafting their codes, with the President free to approve or disapprove as he saw fit. That wasn't delegation with an intelligible principle. That was abdication.
These two cases remain the only times in American history that the Supreme Court has struck down a federal statute purely on nondelegation grounds.
Never before 1935. Never since.
Why the Doctrine Went Dormant
After 1935, the nondelegation doctrine essentially hibernated at the federal level. Courts continued to pay it lip service while approving increasingly broad delegations of power.
The 1989 case Mistretta v. United States captured the modern judicial attitude perfectly. The Court acknowledged that society had become vastly more complex, with problems more technical than anything the founders could have imagined. Congress simply couldn't do its job, the Court declared, "absent an ability to delegate power under broad general directives."
This was a practical accommodation. The federal government regulates airline safety, pharmaceutical development, nuclear power plants, telecommunications networks, financial markets, environmental pollution, workplace conditions, and thousands of other domains requiring specialized expertise. Could Congress really write detailed rules for each? Members of Congress are generalists, not chemists or engineers or epidemiologists.
Some legal scholars argue the nondelegation doctrine was never meant to prohibit delegation entirely—only to require that Congress make the fundamental policy choices while leaving implementation to others. Eric Posner and Adrian Vermeule have argued that Congress doesn't actually transfer its legislative power when it authorizes agencies to act. Rather, Congress is exercising its legislative power by creating the framework within which agencies operate.
This is a subtle distinction, but an important one. Congress decides that unsafe food shouldn't reach consumers. That's the legislative choice. The FDA then figures out what "unsafe" means in specific contexts. That's execution.
Critics find this reasoning uncomfortably circular. If Congress can delegate anything as long as it provides some intelligible principle—and courts almost never find a principle unintelligible—then the doctrine provides no real constraint.
The Doctrine's Possible Revival
For decades, nondelegation seemed like a constitutional curiosity, something law professors discussed while the real world moved on. But recently, a faction on the Supreme Court has shown interest in reviving it.
The 2019 case Gundy v. United States provided the clearest signal. The case involved the Sex Offender Registration and Notification Act, which authorized the Attorney General "to prescribe rules" about which sex offenders would need to register. A challenge reached the Supreme Court arguing this was too vague a delegation.
The Court upheld the law, but Justice Neil Gorsuch wrote a lengthy dissent that read like a manifesto for nondelegation revival. He argued that the statutory provision failed to fit within any of the permissible exceptions he believed should constrain delegation. Chief Justice John Roberts joined that dissent—a notable signal from the Court's center.
State courts, interestingly, have been more willing to enforce nondelegation limits than federal courts. The doctrine has proven popular in some state judicial systems, suggesting that its apparent death at the federal level reflects judicial choice rather than constitutional necessity.
How Other Countries Handle It
The United States isn't alone in wrestling with these questions. Different democratic systems have developed different approaches.
In the United Kingdom, the principle operates somewhat differently. The presumption is that powers granted by Parliament to public bodies cannot be delegated further without explicit authorization. It's a default rule that Parliament can override if it chooses.
Australia presents an interesting asymmetry. The federal Parliament cannot delegate its powers to state parliaments or governments. But states can delegate their powers upward to the federal parliament through a specific constitutional mechanism. Power flows up more easily than down.
Canada draws a harder line between its federal and provincial levels. Neither Parliament nor the provincial legislatures can delegate powers to each other. The Supreme Court of Canada established this rule in 1951, treating the division of powers as a fundamental structural principle that can't be rearranged by mutual agreement.
The Major Questions Doctrine: A New Constraint
In recent years, the Supreme Court has developed what it calls the "major questions doctrine"—a cousin to nondelegation that may prove more practically significant.
Here's the idea: When an agency wants to decide something of "vast economic or political significance," a vague congressional authorization isn't enough. The agency needs clear statutory language specifically granting that power.
The Court articulated this memorably in a 2014 case: "We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" An earlier decision put it more colorfully: Congress "does not hide elephants in mouseholes."
In practice, this means agencies can't rely on general statutory language to justify transformative regulations. If the Environmental Protection Agency wants to restructure the entire energy sector, it needs Congress to say so explicitly. If the Occupational Safety and Health Administration wants to impose a nationwide vaccine mandate on employers, it needs specific congressional authorization.
The doctrine's highest-profile application came in West Virginia v. Environmental Protection Agency in 2022. The EPA had developed the Clean Power Plan, which would have required energy producers to shift from fossil fuels to renewable sources. The Court ruled that the Clean Air Act didn't authorize such a sweeping transformation of the energy industry. The elephants were too large for the mouseholes the EPA had found.
The Line Item Veto Detour
A related controversy arose in 1998 over the Line Item Veto Act, which Congress had passed two years earlier. The law allowed the President to selectively cancel portions of appropriation bills—to sign a spending bill while striking out specific provisions.
Was this an unconstitutional delegation? The challengers thought so, arguing extensively based on nondelegation principles. But the Supreme Court struck down the law on different grounds: it violated the Presentment Clause, which establishes the formal procedures for passing legislation. A bill becomes law one way—through passage by both houses and presidential signature. The President can't slice it up afterward.
Justice Anthony Kennedy, in a concurring opinion, indicated he would have found a nondelegation violation. He saw the law as transferring to the President a power that belongs exclusively to Congress. But the majority didn't need to reach that question. The Presentment Clause provided an easier path to the same destination.
Presidential Power and Its Limits
The nondelegation doctrine connects to broader questions about the boundaries of executive power in the American system. Berkeley law professor Daniel Farber, in his 2021 book Contested Ground, traces how the doctrine has served as a check on presidential ambition throughout history.
Even Abraham Lincoln—generally revered as one of the greatest presidents—was denounced as a would-be dictator during his lifetime. His Civil War actions pushed constitutional limits in unprecedented ways. The question of what presidents can do unilaterally, and what requires congressional authorization, has never disappeared.
Since Watergate, these tensions have intensified. Presidents of both parties have tested boundaries. George W. Bush's war on terror, Barack Obama's DACA program for young immigrants, Donald Trump's travel ban on predominantly Muslim countries—each provoked constitutional challenges, and each involved questions about whether the president had proper congressional authorization.
The nondelegation doctrine represents one answer to these concerns: Congress must be specific about what powers it grants. Vague authorizations that presidents can interpret expansively undermine the constitutional design.
The Fundamental Tension
At its core, the nondelegation debate reflects an unresolved tension in democratic governance.
On one side stands accountability. The people elect legislators to make laws. When unelected bureaucrats make the rules that actually govern daily life—what additives appear in food, what emissions cars can produce, what safety equipment employers must provide—something seems to have gone wrong. The people never chose those officials. They can't vote them out.
On the other side stands practicality. Modern problems are genuinely complex. The legislators the people elect cannot possibly have the expertise to specify every rule for every domain. A senator who spent her career as a lawyer has no special insight into acceptable particulate matter levels in the atmosphere. Delegation to experts who do understand these matters seems not just sensible but necessary.
The intelligible principle test attempts to thread this needle. Congress makes the big decisions—protect food safety, keep workplaces safe, prevent unfair competition. Agencies handle the implementation. The people's representatives set the direction; technical experts figure out how to get there.
But critics see this as a fig leaf. In practice, the "big decisions" often prove empty. What does it mean to ensure "fair competition" or "reasonable" safety standards? Everything depends on the implementation, which is precisely what Congress has handed off.
Why It Matters Now
For most of the past century, the nondelegation doctrine lived in law review articles rather than courtrooms. Judges found intelligible principles everywhere and struck down nothing. The administrative state expanded continuously.
That may be changing. With multiple justices expressing skepticism of broad delegation, with the major questions doctrine gaining traction, with state courts actively enforcing nondelegation limits, the doctrine seems to be waking from its long sleep.
What would a nondelegation revival mean in practice?
At minimum, it would force Congress to legislate with more specificity. No more instructing agencies to act in the "public interest" and leaving the definition to bureaucrats. Congress would need to make hard choices itself rather than punting them downstream.
At maximum, it could invalidate significant portions of the modern regulatory state. If courts applied nondelegation strictly, many agencies would find their mandates constitutionally deficient. Environmental regulations, financial rules, workplace safety standards—all could be vulnerable.
Supporters see this as a restoration of constitutional order, returning power to the people's elected representatives. Critics see it as a recipe for paralysis, leaving government unable to address complex modern problems that the founders never imagined.
The argument that began with John Locke in 1690—about whether representatives can authorize others to make law—remains unresolved more than three centuries later. The nondelegation doctrine, far from being a dusty legal relic, may prove central to how American democracy functions in the decades ahead.