The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else

The Constitution gives Congress a job. Congress has found a way to keep the title and outsource the work. If a company did that, we would call it a shell. When Congress does it, we call it Tuesday.

The legal name for the rule that is supposed to prevent this is the nondelegation doctrine, and it is one of the least understood and most important ideas in constitutional law. This post explains it from the ground up: the words of the text, the philosopher the Founders were reading, the cases that built and gutted it, the live argument at the Supreme Court today, and what would actually change in Washington if the doctrine were enforced again.

The text: five words doing a great deal

Start where every constitutional argument should start, with the words. Article I, Section 1 reads:

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.

Three phrases carry the weight. "All" means all, not some, not most. "Legislative Powers" is the power to make law. And "shall be vested in a Congress" names the holder. Compare Article II, Section 1, which says "The executive Power shall be vested in a President," and Article III, Section 1, which says "The judicial Power of the United States, shall be vested in one supreme Court." The Constitution sorts the three kinds of power into three holders, and Article I says which holder gets lawmaking.

Then there is the long process that Article I, Section 7 prescribes for turning a bill into a law: passage by both houses, presentment to the President, a possible veto, and a two-thirds override. That is an elaborate, deliberately slow procedure with many places to stop a bad idea. A rule written by an agency passes through none of those gates. The delegation argument is that if the Constitution takes such trouble to specify how laws are made, Congress cannot cure the inconvenience by letting someone else make them.

The idea behind the text

The Founders were not inventing this. They were reading John Locke, whose Second Treatise of Government, published in 1689, was the political textbook of the age, and Montesquieu, whose Spirit of the Laws gave them the separation of powers. The post on Montesquieu Warned That Liberty Dies Where One Hand Makes and Enforces Law covers the second, and Consent of the Governed Was a Precise Idea in Locke, Not a Slogan covers the first.

Locke addressed the point directly in Section 141 of the Second Treatise. The legislative, he wrote, cannot transfer the power of making laws to any other hands, for it is only a delegated power from the people, and those who have it cannot pass it over to others. The logic is the logic of agency in ordinary life. If I hire you to manage my affairs, you cannot hire a stranger to manage them in your place without my consent. The people gave the legislature a trust. A trustee cannot sublet the trust.

That is the root of the doctrine. Consent of the governed is the foundation of legitimate law, and consent was given to a particular body. Rules written by someone else rest on no consent at all.

The problem: real delegation is unavoidable

Now the honest complication, which any serious account must face. Congress has always delegated something. It has never written the details of every law.

The Court faced this early. In Wayman v. Southard in 1825, Chief Justice Marshall wrote that the line between the important subjects that the legislature must decide itself, and the details that it may fill in or leave to others, is a difficult one to draw, but that the distinction exists. In Field v. Clark (1892) the Court upheld a tariff law that let the President adjust duties when he found other countries were imposing unreasonable taxes on American goods, on the reasoning that the President was finding a fact and carrying out the legislative will, not making law.

So the question has never been whether Congress may delegate anything. It is where the line lies. And the Court's answer for the last century has been a single test.

The test: "intelligible principle"

The test comes from J.W. Hampton, Jr. & Co. v. United States, decided in 1928. The statute let the President raise or lower tariff rates to equalize the difference between the cost of producing goods at home and abroad. A challenger said Congress had handed away its power to tax. Chief Justice Taft, writing for the Court, held that if Congress lays down by legislative act an intelligible principle to which the person or body authorized to fix rates is directed to conform, the action is not a forbidden delegation of legislative power.

Notice what that sentence actually asks. The statute must give an intelligible principle, and the executive must conform to it. In Hampton the principle was concrete: equalize costs of production, a standard a court could check against facts. The test as Taft wrote it had teeth.

Seven years later the Court used the test twice to strike down statutes. In Panama Refining Co. v. Ryan (January 1935) the Court held that a hot-oil provision gave the President power with no standard at all, and in Schechter Poultry Corp. v. United States (May 1935) it held that the National Industrial Recovery Act's code-making system gave him an unbounded license. The accounts are in The Government Once Prosecuted Men Under a Rule That No Longer Existed and A Brooklyn Poultry Firm Beat the New Deal Nine to Nothing in 1935.

Those two cases are the only times in history the Court has struck down a statute on this ground. Since then the "intelligible principle" has been found in almost every delegation that has come before the justices, including very broad directions. In Mistretta v. United States (1989) the Court upheld the creation of the Sentencing Commission, an independent body in the judicial branch that writes binding sentencing guidelines. Justice Scalia dissented, arguing that the Commission exercises true lawmaking power with no meaningful standard to confine it, and calling it a junior-varsity Congress.

Whitman v. American Trucking: the test at its most lenient

The clearest modern example is Whitman v. American Trucking Associations, decided in 2001. The Clean Air Act directs the Environmental Protection Agency to set national ambient air quality standards at the level "requisite to protect the public health," with an adequate margin of safety. Industry groups said that gave the agency a blank check, since it set no cost limit and offered no definition of safe.

The Court rejected the delegation challenge, with every justice agreeing the statute was valid. Justice Scalia, writing for the Court, said the statute was well within the range of discretion the Court had approved, noting that the degree of agency discretion that is acceptable varies according to the scope of the power conferred. When the power is sweeping, as with a national standard affecting the entire economy, the statute must supply more guidance, but the Court found that "requisite" meant what was sufficient but not more than necessary. The same opinion contains the line that Congress does not hide elephants in mouseholes, meaning that it does not pass fundamental decisions through vague or ancillary provisions. That sentence became a seed of the major questions doctrine, a development traced in Five Times the Court Told an Agency That Big Questions Belong to Congress.

The lesson of Whitman is not that the delegation was wise. It is that the test, as applied, will pass nearly anything that has a verb in it.

Gundy and Justice Gorsuch's dissent

The doctrine came back into the spotlight in Gundy v. United States, decided in 2019. The Sex Offender Registration and Notification Act of 2006 required sex offenders to register and told the Attorney General to decide whether and how the requirement applied to offenders who had been convicted before the act. Herman Gundy, who had been convicted before the law, argued that Congress had given the Attorney General unlimited power to write a criminal law.

The Court affirmed the conviction, 5-3, because Justice Kavanaugh had not yet joined the Court and took no part. Justice Kagan wrote a plurality opinion for four justices holding that the statute, read in context, did give the Attorney General a standard: to apply the registration requirement to pre-act offenders as soon as feasible. Justice Alito concurred in the judgment, writing that he would not break with the Court's precedents without a majority willing to reconsider the whole approach, but adding that if a majority were willing to do so he would support the effort.

Justice Gorsuch dissented, joined by Chief Justice Roberts and Justice Thomas. His opinion is the fullest modern statement of the case for the doctrine, and its thread is plain. The Constitution's lawmaking process exists to protect liberty. When Congress writes a vague statute and leaves it to the executive to say who is covered and what the penalties are, the executive is making the law and the courts are being asked to bless it. He suggested the framework Chief Justice Marshall implied: Congress may make the policy, and the executive may fill in details, find facts, or decide when a rule Congress wrote applies.

In November 2019, in a statement respecting the denial of review in Paul v. United States, Justice Kavanaugh wrote that Justice Gorsuch's opinion had raised important points that may warrant further consideration in future cases. That is the shape of the question now: five of the nine justices then on the Court, counting Gorsuch, Roberts, Thomas, Alito and Kavanaugh, had signaled interest in tightening the rule. Developments after the time of this writing belong in the Court's own opinions, which you can find at the Court's website and on the courts page.

The steelman: the best case against reviving it

Here is the case for leaving the doctrine as it is, stated as its defenders would state it.

One: the "intelligible principle" test is judicially manageable, and any stricter test would draw lines that no court can defend. Two: Congress cannot foresee the future, and a government that cannot adjust to events is a government that fails. Three: the doctrine would hand judges a veto over a vast range of statutes and make them policy managers. Four: delegation is a political choice, and the cure for bad delegation is politics, since Congress can revoke what it granted.

These are the most substantial objections, and the answers matter.

First, manageability. Courts have developed workable tests for similar problems. In the cases that matter most, the delegation is so open-ended that no sophisticated test is needed, and the Court has, in the major questions line, already begun to ask whether Congress spoke clearly on a matter of great importance. A stricter rule would apply most forcefully where the stakes are highest: to the delegation of power over crimes, taxes and the economy as a whole.

Second, flexibility. The doctrine does not forbid flexibility. Gorsuch's framework in Gundy expressly allows Congress to set a policy and have the executive fill in details, find facts and exercise discretion within the boundaries. Marshall said the same in 1825. A statute that says "a tariff of this rate on goods of this kind, adjusted when the President finds X" passes. A statute that says "do what is wise" does not.

Third, judicial power. The Court already decides whether Congress has gone beyond its enumerated powers. Asking whether Congress has done the work itself is a question of the same type. And the alternative, letting the executive define the limits of its own power, is a far larger transfer of authority than anything a court does.

Fourth, politics will fix it. This is the weakest answer, because the structure of delegation protects the delegators. Members of Congress get credit for the popular goal and the agency takes the blame for the unpopular details. Ask who benefits from the arrangement, and you will see why Congress has not repaired it. The doctrine exists because the political branches have an interest in avoiding responsibility.

What would change if the doctrine returned

Picture the effect, labelled as a hypothetical. Suppose the Court held that a statute must itself decide the major policy choices, leaving agencies to fill in details and find facts. What would happen?

• Statutes would get more specific. Congress would have to say what level of risk it accepts, what costs it will bear and what is out of bounds, rather than writing "reasonable" and leaving the argument to an agency.
• Fewer rules, and more accountability for the ones that remain. A member who voted for a specific rule could be held to it. A member who refused to vote would have left the field.
• Slower lawmaking, on purpose. The Constitution's lawmaking process was built to be slow. Its slowness is a way of making sure that a policy has broad support before it binds everyone.
• Some existing regulations would be vulnerable. The ones that rest on the broadest delegations would have to be ratified by Congress or fall. That is a real disruption, and a responsible Court would phase it in.
• Less power for the President as well. This is the point conservatives sometimes forget. The doctrine does not favor either party. A President of any party who relies on a vague statute to do something large will be limited by it, which is why the principle is worth defending whoever holds the office.

The mechanisms Congress already has to take back power are described in The Congressional Review Act Lets Congress Veto a Rule, if It Moves in Time and Make Congress Vote on Every Major Rule, and Watch Accountability Return, and the case of a Congress that tried to give away everything is imagined in Imagine Congress Passed One Last Law Handing All Its Power to the Experts.

The case in brief

1. Article I, Section 1 vests "All legislative Powers herein granted" in Congress, and Locke's Second Treatise, Section 141, supplies the reason: a delegated power cannot be passed on to others.
2. Some delegation is unavoidable. The Court's test since J.W. Hampton (1928) asks whether Congress laid down an "intelligible principle," and it struck down statutes under that test only twice, in 1935.
3. Whitman v. American Trucking (2001) shows how lenient the test became, and Justice Gorsuch's dissent in Gundy (2019), joined by two others, argued for a firmer rule.
4. The best objections, about manageability, flexibility and judicial power, are answered by a rule that lets Congress set policy and the executive fill in details.
5. Reviving the doctrine would force Congress to write specific laws, make members answer for them, and limit presidents of every party.

What you can do: pick one federal law you have read about, find its text on Congress.gov, and see whether it states the policy itself or leaves it to an agency, then write your member of Congress a short note asking which they think the Constitution requires.