The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies

Every great constitutional principle seems to arrive wearing a ridiculous costume. Marbury came to us through a stack of undelivered judicial commissions. The Commerce Clause had its farmer growing wheat for his own chickens. And the rule that Congress cannot hand its lawmaking power to somebody else was last enforced in a case about a live-poultry market in Brooklyn and a rule that barred customers from picking their own chicken.

Laugh if you like. The brothers who ran that slaughterhouse took on the whole machinery of the New Deal, and nine justices, including the three who were the most sympathetic to Franklin Roosevelt, told the government that it had no power to do what it did. Almost nobody remembers that the decision was unanimous. And almost nobody realizes that the issue it decided, whether the legislature may give away the power to legislate, is still unsettled and is back at the center of the argument over the modern administrative state.

The text

Begin where a constitutionalist begins, with the document. Article I, Section 1: "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."

The word to watch is "vested." The power is placed in a particular body. It is not placed in the President, in a commission, in a board of industry representatives, or in a bureau. The Framers knew what it meant to have lawmaking power in the wrong place, because they had been ruled by a King who claimed to make law by proclamation and by Parliament acting over their heads.

They also knew the political theory behind the clause. John Locke wrote in the Second Treatise of Government that the legislature "cannot transfer the power of making laws to any other hands," because it is only a delegated power from the people. Those who hold a power in trust do not get to hand it off. Montesquieu argued that when the legislative and executive powers are united in the same person or body, there is no liberty. Madison, in Federalist No. 47, called the accumulation of all powers in the same hands "the very definition of tyranny."

Put those together and you get the nondelegation doctrine: Congress may not transfer its legislative power to another body. The rule is not in a particular clause. It is a consequence of the vesting of all legislative power in Congress.

The problem the doctrine had to solve

The doctrine immediately runs into a practical objection that the Court recognized from the start. Congress cannot write every rule. Even in 1790 the First Congress passed laws that left details to the executive. If every filling-in of detail were a forbidden delegation, no government could function.

The Court's early answer, in Wayman v. Southard in 1825, Chief Justice Marshall writing, was that there is a difference between the "important subjects, which must be entirely regulated by the legislature itself," and the "power to fill up the details." That distinction is the whole history of nondelegation in a sentence. Where the line falls is the argument.

The 1928 test: an intelligible principle

In J.W. Hampton, Jr. & Co. v. United States in 1928, Chief Justice Taft wrote for the Court that Congress does not violate the Constitution when it lays down "an intelligible principle to which the person or body authorized to fix such rates is directed to conform." The case concerned the President's power to adjust tariff rates to equalize costs of production at home and abroad. Congress had set the goal. The executive was to find facts and apply them.

Remember the phrase "intelligible principle." It was meant as a modest test, a way of saying that Congress must provide a standard. It has since become the most elastic phrase in American administrative law. Almost any statute that tells an agency to act in "the public interest" has been held to supply one.

1933: the National Industrial Recovery Act

The Depression brought the biggest experiment in delegated power the country had seen. The National Industrial Recovery Act of 1933 authorized the President to approve "codes of fair competition" for industries. Trade groups would draft codes that set wages, hours, prices and production rules for their industries. Once the President approved a code, violating it was a federal crime. Codes approved under the Act covered everything from steel to dress manufacturing.

The statute's standard, such as it was, was a list of broad goals: promoting "the policy of this title," eliminating unfair competition, and rehabilitating industry. The statute authorized the President to approve a code on finding that the trade groups were representative and did not discriminate against small enterprises, and that the code would tend to effectuate the policy of the Act. In practice, groups of competitors wrote rules that bound their entire industry, including their rivals, with criminal penalties behind them. The National Recovery Administration put a blue eagle on the doors of compliant businesses, and an enormous bureaucracy grew up to review codes.

Panama Refining v. Ryan (January 1935)

The first crack came in January 1935. Section 9(c) of the Act authorized the President to prohibit the interstate shipment of "hot oil," petroleum produced in violation of state quotas. The Court held 8 to 1, in an opinion by Chief Justice Hughes, that Congress had given the President unlimited discretion with no standard and no finding required. It was the first time the Court had struck down a statute for excessive delegation. Justice Cardozo dissented, arguing that the delegation was acceptable in context. He would soon change his tone.

The Schechter facts

The case that finished the job began in a Brooklyn live-poultry market. The Schechter brothers ran a business that bought chickens from outside New York, brought them to Brooklyn, and sold them to local butchers and retailers. They were governed by the "Live Poultry Code" for the New York City metropolitan area, written by trade groups and approved by the President.

The Schechters were convicted on counts that included violating the code's wage and hour rules, and a rule against what the code called "straight killing." A customer who wanted to buy a chicken could not choose individual birds, and had to take the one that came to hand. One count, the one that gave the case its popular name, involved the sale of an unfit chicken. The brothers said the code was beyond Congress's power. The government said it was a lawful part of the effort to fight the Depression.

The question and the decision

A.L.A. Schechter Poultry Corp. v. United States was decided on May 27, 1935, and it was unanimous, 9 to 0. Chief Justice Hughes wrote the opinion. The Court decided two issues.

First, the delegation. The Court held that Section 3 of the NIRA, which authorized the President to approve codes, was an unconstitutional delegation of legislative power. The statute gave no meaningful standard. It left the President free to approve or prescribe any code he thought would promote "fair competition," which could mean almost anything, and the codes were written by private groups of industry members. Hughes wrote that Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. He added the line that has outlived the statute: "Extraordinary conditions do not create or enlarge constitutional power."

That sentence is worth reading twice. The government's whole defense was the emergency of the Depression. The Court answered that emergencies do not rewrite the Constitution. Whatever the crisis, the structure of the Constitution does not bend. Justice Cardozo, who had dissented in Panama Refining, concurred here, joined by Justice Stone, and said that the delegation in the NIRA was "delegation running riot."

Second, the commerce power. The Court also held that the Schechters' business was not in interstate commerce, because the chickens had come to rest in New York and the local sale had only an indirect effect on interstate commerce. The Court insisted on a distinction between direct and indirect effects. That part of the holding did not survive the Court's later reading of the Commerce Clause, but the nondelegation holding has never been overruled.

The day had a name. May 27, 1935, is often called "Black Monday," because on the same day the Court decided Humphrey's Executor v. United States against the President on the removal power, and Louisville Joint Stock Land Bank v. Radford against a farm-debt law. The New Deal was in a rout. Roosevelt was furious, and within two years he proposed his plan to add justices to the Court, which the Senate rejected.

What happened after

That is the story of the case. The story of the doctrine is stranger.

Schechter and Panama Refining are the only two times in American history that the Supreme Court has struck down a statute for excessive delegation. After 1935, the Court shifted decisively. It upheld a long series of broad delegations, usually by finding an "intelligible principle" in language of remarkable vagueness. Standards such as "just and reasonable," "public interest, convenience, or necessity," and "fair and equitable" were all enough.

Here are the markers.

1. Mistretta v. United States (1989). The Court upheld Congress's creation of the United States Sentencing Commission, which writes binding sentencing guidelines, against a nondelegation challenge. Justice Scalia was the lone dissenter, calling the Commission a "junior-varsity Congress."
2. Whitman v. American Trucking Associations (2001). Justice Scalia, writing for the Court, held that the Clean Air Act's instruction to the EPA to set air quality standards "requisite to protect the public health" with "an adequate margin of safety" provided an intelligible principle. The author of the Mistretta dissent accepted the standard as sufficient. He wrote that the Court had "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."
3. Gundy v. United States (2019). The Sex Offender Registration and Notification Act let the Attorney General decide whether and how its registration requirements apply to people convicted before the Act. A plurality of four, in an opinion by Justice Kagan, upheld the arrangement. Justice Gorsuch wrote a dissent, joined by Chief Justice Roberts and Justice Thomas. Justice Alito concurred in the judgment and wrote that if a majority were willing to reconsider the Court's approach, he would support that effort. Justice Kavanaugh did not take part.

Gorsuch's dissent in Gundy

Gorsuch's dissent is the most thorough modern statement of the case against the broad reading of "intelligible principle," and it is worth reading in full. He made three points.

First, history. The "intelligible principle" language came from a case, Hampton, that upheld a conventional delegation of fact-finding, and the phrase has been stretched far beyond what the case meant. The Founders understood that the legislature's job is to decide the policy questions, and that the executive's job is to carry them out.

Second, he offered a three-part test taken from the cases. Congress may give the executive discretion to fill in the details of a statute, but only if Congress has made the policy decisions. It may make the application of a rule depend on executive fact-finding, as it did in tariff cases. And it may give the executive power over matters that fall within the executive's own authority, such as foreign affairs. What it may not do is leave to the executive the decision about what the law should be.

Third, he made the argument about liberty: delegation lets legislators take credit for a popular goal and shift the blame for the hard choices. A legislator who can write a vague statute and let an agency make the hard choices gets the credit for the goal and none of the blame for the cost. That is not a bug of delegation. It is the reason Congress likes it.

The strongest objection

The objection to reviving the nondelegation doctrine is a serious one, and I will state it as its defenders would.

Congress passes laws in a world of enormous complexity. It cannot specify the precise level of every pollutant, the safety standard for every machine, or the rate for every utility. Modern government requires agencies with expertise to fill in details. A strict nondelegation rule would cripple the government, force Congress to micromanage, and invite judges to decide how much detail is enough, a judgment for which there is no neutral measure. The "intelligible principle" test may be loose, but any tighter test would be unworkable. As the Court has said in several cases, the line between "important subjects" and "details" is one of degree, and the Court has no tool for drawing it.

That is a real argument, and here is the answer in three parts.

1. Difficulty of line-drawing is not a reason to abandon the line. Courts draw lines of degree constantly, in the law of negligence, reasonableness and due process. The fact that a line is hard to draw does not mean it does not exist.
2. The line can be drawn by asking who decides the question that matters. If the statute makes the key policy choice and leaves the agency to implement it, the delegation stands. If the statute says "do what is good" and walks away, it does not. The NIRA was a clear example of the second.
3. The alternative is a lawmaking system in which the people who make rules cannot be voted out. The cost of the administrative state's flexibility is accountability. Congress can still delegate. It simply has to decide something first.

There is a middle path that has gained ground, and it is the major questions doctrine, which operates on the same concern without striking down statutes. You can read how it works in The Major Questions Doctrine Explained, From Tobacco to the Power Plants. The doctrine has been a less dramatic substitute for nondelegation, a way of making Congress speak clearly on the large questions.

What conservatives should and should not say

Reviving nondelegation is a serious project, and it will cut across party lines. A rule that curbs agencies will curb them under every President. A future Republican administration would find its own agencies constrained, which is the point. A principle that you would apply only to your opponents is not a principle.

Conservatives should also be honest that nondelegation will not solve everything. Congress is unlikely to repeal the modern administrative state by statute, and judicial doctrine cannot replace legislative will. The deeper cure is the one the Founders offered: a Congress that does its job, writes its own laws, and answers for them. INS v. Chadha Wiped Out the Legislative Veto in Nearly 200 Laws at Once tells the related story of how the Court dealt with the tools Congress invented to supervise the agencies it created. And Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not explains why a court's role in this fight is limited to saying what the law is. The fuller history of how deference to agencies came and went is in Chevron Began as a Win for Reagan's EPA, Which Makes Its Fall So Ironic.

If you want the numbers behind the argument, the Competitive Enterprise Institute counted more than 3,000 final rules in 2024 and 2,441 in 2025, while Congress passes a far smaller number of statutes in a year. The ratio is the nondelegation problem in arithmetic form. See the red tape page for how those rules accumulate.

The case in brief

1. Article I, Section 1 vests "all legislative Powers" in Congress, and the Founders' theory, from Locke to Madison, was that a body holding power in trust may not hand it on.
2. Schechter Poultry (1935) struck down the NIRA's code-making power unanimously, because it gave the President and private trade groups lawmaking authority with no real standard, and it declared that extraordinary conditions do not enlarge constitutional power.
3. Since 1935 the Court has upheld every delegation it has reviewed by finding an "intelligible principle," a phrase from Hampton (1928) that has become very loose.
4. Gorsuch's dissent in Gundy (2019) calls for a return to the older line: Congress makes the policy, and the agency carries it out.
5. The answer to the objection from complexity is that Congress may delegate details but must decide the question that matters, since the alternative is lawmaking that no voter can reach.

What you can do: read Article I, Section 1, then look up the last law passed by your member of Congress on Congress.gov and ask whether it decided the policy or passed the decision to an agency.