Imagine Congress Passed One Last Law Handing All Its Power to the Experts

The vote was 535 to nothing, and every member of Congress was home in time for dinner. That is how you know it is fiction. This column is a thought experiment, and I am labelling it as one in the first paragraph so nobody mistakes it for a news story. There is no Delegation of Everything Act. No such bill has been introduced, nobody in Congress has proposed it, and I am not predicting it. I am taking an idea that is already half-practiced and finishing the sentence for it, to see what the sentence says. After the satire I will show you the real text, the real cases and the real history, and you can decide how far from the fiction we are.

The Delegation of Everything Act

Picture the scene. It is a Thursday, because Congress likes a Thursday: a day that ends early and lets everyone fly out before the weather turns. The Speaker bangs the gavel and announces the final order of business, a bill with a title so long it requires its own committee to read aloud. Its operative section is one sentence:

"All legislative powers of the United States, to the extent they are not already exercised by the executive agencies, are hereby delegated to the executive agencies, which shall issue such rules as they find to be in the public interest."

A senator rises. He is delighted. "Madam President, this is the most efficient thing this body has ever done. We have been writing laws for two hundred and thirty-seven years, and look at the mess. Experts will do it better. They have degrees. They have standing committees of their own. And, Madam President, they do not have to run for reelection."

The galleries applaud. A reporter on the cable networks describes the bill as "a bipartisan breakthrough in governance," which is what the coverage calls anything that moves power away from voters and toward people with letterhead. The President signs it with a ceremonial pen, and then another ceremonial pen, because the signing took long enough that the first pen ran dry. The bill takes effect upon enactment, or upon publication of a notice in the Federal Register stating that it has taken effect, whichever comes first.

Congress then does what any retired body does. It takes up golf. The cloakroom is converted to a gift shop. Members spend their days at the district office, holding "listening sessions" at which they listen very carefully, and then forward the complaint to the agency, which is the only body with the power to do anything about it.

Life Under the Delegation

Let us follow a family, and since this is a thought experiment I will label the family hypothetical: the Parkers of Dayton, Ohio, who do not exist.

On Monday, the Parkers learn that the Department of Agriculture has issued a rule on backyard fences. On Tuesday, the Department of Energy issues a rule about how many times a week they may run the dishwasher, citing the public interest. On Wednesday, the two agencies discover that the rules conflict, and each sues the other, in the one court that has jurisdiction, which is an administrative tribunal run by a third agency. On Thursday the court rules that both rules are valid, and that the Parkers must obey both.

Mrs. Parker calls her congressman. His staff is sympathetic. The congressman has a very good voicemail greeting. "I'm sorry," says the aide, "that's not something Congress can change. It's an agency matter. But I can send you a copy of the Federal Register."

"How long is it?"

"A very large number of pages, give or take."

"Give or take what?"

"Another agency."

The Parkers do the only thing left to them. They vote. And the election is a spirited contest in which the two candidates debate the proper level of agency discretion over fences, a power neither would hold if elected. Turnout is low. This is a rational response by voters who have noticed that the thing they are choosing between has no thing to choose.

I will stop the satire there, and I mean it, because the moment of silence after a joke is where an argument starts. If the scene made you smile uneasily, you already know why. You know it because some part of it is already how things work.

What the Constitution Says, Word for Word

Article I, Section 1 of the Constitution opens the legislative article with a sentence that every schoolchild should be able to recite:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Look at the verbs. The powers are "vested." They are vested "in a Congress." The sentence does not say that they are vested in Congress "or in whomever Congress finds convenient." The Founders wrote a recipe for lawmaking, and the recipe has ingredients: two chambers, a vote in each, and presentment to the President under Article I, Section 7. Those steps are not decorative. They are the means by which the people's representatives are made to put their names to a law and answer for it.

The Founders did not invent this principle. John Locke stated it in the Second Treatise of Government, in Section 141, which every one of the Framers' generation knew:

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.

That sentence does the whole work. The legislature is itself a delegate. The people delegated the power to make laws to a legislature, and a delegate cannot sub-delegate what it was never given the right to give away. A trustee cannot hand the trust to a stranger because the stranger seems competent.

James Madison Saw the Paperwork Coming

The other half of our fiction, the part where the law becomes too large to read, was foreseen by Madison in Federalist 62, in a passage worth quoting in full:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.

Madison is making an argument about the Senate, about why a stable upper house protects the people from what he calls mutable policy. But the principle reaches further. A law that cannot be read is not a law in any sense a free citizen can use. For a longer treatment of that paper, see Federalist 62 Warned That Mutable Laws Betray a Free People.

Now compare the passage with the facts. According to the Federal Register, agencies published 2,441 final rules in 2025 and 3,248 in 2024. That is the number of rules, not pages, and it is a count of the binding instruments published in a year in which Congress, for contrast, enacted a small fraction as many laws. I cover that gap in Agencies Write Thousands of Rules a Year While Congress Passes Hundreds of Laws. Whatever you think of any single rule, the ratio tells you where most of the lawmaking now happens.

Where the Courts Have Drawn the Line

Here is the real law, and it is more complicated than either the satire or its critics suggest. I will give it to you in order, as numbered premises, because a point-by-point argument should be built like a staircase.

1. The principle is old and accepted. In Wayman v. Southard (1825), Chief Justice John Marshall distinguished between the "important subjects" that must be regulated by the legislature itself and powers that Congress may allow others to fill in with details. Even the earliest case affirms that there is a line, and that Congress cannot hand over the whole.
2. The test the Court adopted is generous. In J.W. Hampton, Jr. & Co. v. United States (1928), the Court held that Congress does not delegate legislative power when it lays down an "intelligible principle" to which the agency must conform. That phrase, "intelligible principle," has governed ever since.
3. The Court has struck down delegations, but only twice. In 1935, in Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States, the Court invalidated parts of the National Industrial Recovery Act for giving the President, and through him industry groups, nearly boundless authority over oil shipments and trade codes. Schechter was unanimous. It was also the high-water mark, and since 1935 no delegation has been struck down on that ground.
4. The principle has been applied loosely since. In Whitman v. American Trucking Associations (2001), the Court upheld the Clean Air Act's instruction to set air quality standards "requisite to protect the public health," and Justice Scalia wrote that the Court had almost never felt qualified to second-guess Congress on how much discretion to grant.
5. The question is open again. In Gundy v. United States (2019), a plurality upheld a delegation to the Attorney General in the sex-offender registration law. Justice Gorsuch, joined by the Chief Justice and Justice Thomas, dissented and argued that the intelligible-principle test had wandered far from the Founders' meaning, and Justice Alito said he would be willing to reconsider the approach in a future case. Those two opinions are the reason lawyers still discuss the doctrine as alive.

A fuller treatment of the doctrine is in The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else, and a related line of cases, in which the Court insists that Congress must speak clearly before an agency claims power over a question of vast economic and political significance, is in Five Times the Court Told an Agency That Big Questions Belong to Congress. In West Virginia v. EPA (2022), the Court applied that major-questions principle and held that the agency had claimed more than the statute gave it.

The Best Case for Delegation

I said I would state the other side fairly, so let me do it, and let me do it without a sneer.

The argument for broad delegation goes like this. Modern government is complicated. Congress has 535 members, and no committee can master the chemistry of air pollution, the engineering of a pipeline, the actuarial tables of an insurance market. Experts can. Congress sets the goal and the agency fills in the details, as Marshall said in 1825. And Congress has every ability to take the power back: it can amend the statute, hold hearings, cut the budget or disapprove a rule. If a delegation goes wrong, the remedy is to legislate, and Congress can always do that.

That is a respectable argument. It is also wrong, for four reasons.

1. The remedy does not work. To take back a delegation, Congress must pass a law, and a law needs the President's signature or a two-thirds override. The agency's rule stays in force while Congress fights over it. Delegation shifts the burden of the legislative process onto the people who want to stop the rule, which turns the Founders' design upside down. The Founders made it hard to make law, so that a minority could block bad bills. Delegation makes it hard to unmake law, so that an agency can impose a rule no majority could pass. See INS v. Chadha Killed the Legislative Veto and Left Congress Fewer Tools for how the Court removed one of Congress's shortcuts.
2. Delegation hides the decision. When a member of Congress writes "the Secretary shall do what is in the public interest," she has avoided a vote on the hard question, which is what the public interest requires. She can take credit for the goal and blame the agency for the result. That is not efficiency. It is a refund of accountability.
3. Expertise is not authority. An engineer can tell you what a pipeline will cost. She cannot tell you whether the cost is worth it, because that is a question about values, and values are the business of the people's representatives. Experts advise, and voters decide. A government of experts is the one the Declaration complains about when it speaks of "swarms of Officers" sent to harass the people and eat out their substance.
4. The argument proves too much. If complexity justified delegation, it would justify abolishing the legislature. We would never need another election, only a better personnel office. The fiction at the start of this column is the logical end of the argument, which is why its defenders never state it that way.

How Close Is the Fiction?

Let me be careful here, because I promised not to dress up a hypothetical as a prediction, and I will not claim that Congress has retired. It has not. Congress passes laws, runs hearings, holds the purse and confirms officers. The real question is a matter of degree: how much of the working law of the country is still written by the people you can vote for?

You can measure part of the answer yourself. Take any statute that touches your life, a tax provision, an environmental law, a banking rule, and look at how many words it contains and how many pages of regulation sit beneath it in the Code of Federal Regulations. The ratio will tell you where the detail, and therefore the choices, live. For the structure of that Code, and how to read it, see Your Questions About the Code of Federal Regulations, Answered Plainly.

The legislature's strongest tool against the drift is the one it holds by right and rarely uses: the power of the purse, combined with the Congressional Review Act and the simple habit of writing statutes with specific commands instead of open-ended ones. A Congress that writes "the Secretary shall promulgate regulations as necessary" has chosen to retire a little. A Congress that writes the number, the date and the limit has chosen to govern.

The Case in Brief

1. The Delegation of Everything Act is satire, but it finishes a sentence that real practice has already begun: letting agencies write the rules that bind citizens.
2. The Constitution vests "all legislative Powers" in Congress. Locke's Second Treatise, Section 141, supplies the principle behind it: a delegate cannot pass its power to others.
3. Federalist 62 warns that laws too voluminous to be read cannot serve a free people, and agencies published 2,441 final rules in 2025 and 3,248 in 2024, according to the Federal Register.
4. The Court's "intelligible principle" test has not struck down a delegation since 1935, though Gundy v. United States (2019) shows a growing number of justices willing to revisit it.
5. The cure is not abolishing agencies. It is a Congress that writes specific statutes and votes on the big decisions itself.

What you can do: pick one federal rule that affects you, find the statute it cites in the Code of Federal Regulations, and write to your representative asking whether Congress ever voted on the specific choice the agency made.