By Zachary D. Rogers

Vox recently publish an article by Ian Millhiser in which he proclaimed that Democrats should fear the resurrection of the “largely defunct doctrine” of nondelegation because of the threat it poses to the administrative state run by expert bureaucrats created by progressives and expanded by Democrats. He is correct. Democrats should fear that the Supreme Court will strike down this unconstitutional doctrine, reign in the administrative state, and force Congress to do the hard work of legislating for the national good. 

Mr. Millhiser correctly points out the threat the doctrine poses to the Modern American Regime. Its return would limit the regulatory power of agencies. As he succinctly puts it, “It’s impossible to exaggerate the importance of this issue. Countless federal laws, from the Clean Air Act to the Affordable Care Act, lay out a broad federal policy and delegate to an agency the power to implement the details of that policy.” What Millhiser fails to realize is that this would be a return to the constitutional order of limited government instituted by the Founders. In order to clearly understand this, it is necessary to define the doctrine and understand the evolution of Supreme Court cases and the threat it poses to the ordered liberty of the American Republic. 

The Nondelegation Doctrine

The nondelegation doctrine comes from Article I of the Constitution that vests “All legislative power in Congress"  and the principle of separating executive, legislative, and judicial powers. Vesting legislative power in Congress prohibits this branch from delegating its legislative authority to other branches or federal agencies. Despite this clear prohibition and historical practice, the Supreme Court has allowed Congress to delegate increasing amounts of power to federal officials since the turn of the 20th century. A quick overview of Supreme Court cases will show the original understanding of the doctrine and how the Court has departed from it. 

The Demise of the Nondelegation Doctrine

In Wayman v. Southard (1825), Chief Justice Marshall wrote, "The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.” In sum, while the line might be difficult to find, there is indeed a line. Congress must decide the vital matters of law while permitting minor details to be drawn by others. This case permitted Congress to delegate some non-legislative power to federal courts to create their own federal court procedures. 

J.W.Hampton Jr. & Company (1928) established the intelligible principle which provides that so long as Congress “lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority]is direct to conform,” it is not a violation of the legislative power vested in Congress. The Court reasoned that Congress had provided the president with clear instructions in this instance and thus was not an impermissible delegation of power. 

A.L.A Schecter Poultry Corp v. United States (1935) and Panama Refining Company v. Ryan (1935)are important cases because the Supreme Court struck down unconstitutional delegations of authority of the New Deal. The Court struck down provisions of the National Industrial Recovery Act and affirmed the intelligible principle. Since then, no law has so egregiously violated the nondelegation doctrine, and the intelligible principle has been used to justify large grants of legislative authority to administrative agencies. 

Recent Events

The reasoning of the courts until recently has been that this “intelligible principle” has been that Congress cannot properly do its job (passing legislation) without delegating broad power under general directives in light of the complex, technical, and rapidly changing society confronting Americans in the 20th and 21st centuries. This reasoning might be weakening. 

There are strong indications conservative justices would like to reexamine the nondelegation doctrine in relation to the administrative state. 

In Whitman v. American Trucking Associations (2001), Justice Clarence Thomas expressed qualms about the intelligible principle. Justice Neil Gorsuch in Gundy v. United States (2019) examined the principle closely. Most recently, Justice Brett Kavanaugh expressed a desire to look at the doctrine again. 

How the Doctrine’s Demise Threatens Liberty

The administrative state violates the doctrine of nondelegation, separation of powers, and the enumerated powers of government set forth in the Constitution. This is easy to see when the combination of powers of an agency is examined. 

Federal agencies are given a broad delegation to achieve objectives. Agencies perform two functions that effect the American people. The first, nonbinding agency action, has no formal legal effects (they think about proposing a rule, sending all interested parties scurrying to find the right lobbyist). The second, rulemaking and adjudication, has formal legal effects. We will focus on the later. 

This accumulation of powers and ability to regulate the lives of the American people begins with the delegation of the lawmaking authority by Congress. It works like this. Congress passes broad, vague, but pleasant sounding bills with perhaps worthy goals. Then, agencies (read: unelected and unaccountable bureaucrats) create hundreds upon hundreds of rules and regulations that govern the details of your life and mine following the Administrative Procedures Act. Then, they get to enforce the regulation. Finally, they get to adjudicate both the regulation and its enforcement if its enforcement is appealed by any affected parties. The incentive to favor the regulation in its enforcement and adjudication is tilted in favor of the relevant agency. This combination of powers is unconstitutional and a threat to liberty. It all starts with an unconstitutional delegation of power. 

The American regime is based on the consent of the governed. American citizens at the founding compacted together to create a limited government with enumerated powers. They did so through the Constitution. This document vests the power of legislating to Congress because it was elected directly and indirectly by the people. The Constitution established a federal government of limited and enumerated powers; no branch of the federal government may exercise any powers other than those expressly or impliedly given to it. 

James Madison, writing as Publius in The Federalist Papers Number 47, said, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." 

Conclusion

The modern American regime has seen the demise of the doctrines of enumerated powers and deference to agency interpretations of legislation. Thus, violation of the nondelegation has made administrative agencies very powerful. Congress has abdicated its responsibility to pass the laws and instead has delegated a great sphere of power to the administrative state. 

It is high time the Supreme Court, Congress, and the American people examine the text of the Constitution and reconsider the precedents and legal doctrines that have been developed related to the twin doctrines of separation of powers and nondelegation.