Depending on who you ask, the nondelegation doctrine is either “a fable that originalists tell themselves” (The Atlantic) or “the only realistic way to arrest the gradual slide of our government into the hands of the administrative state” (National Review).
It is crucially important, yet rarely discussed. “If you ask Supreme Court experts what keeps them up at night, the answer is likely the nondelegation doctrine,” UC Berkeley law professor Dan Farber wrote in 2021, before admitting that “99.9 percent of Americans [have] never heard of it.”
What is nondelegation, and why should you care?
Nondelegation: Only Congress makes laws
Congress can’t delegate its legislative powers to the executive branch: That’s the short and sweet explanation of nondelegation. Agencies like the EPA and CDC can enforce laws that Congress passes—and, thanks to judicial deference, they have significant leeway in how they interpret those laws—but neither agency bureaucrats nor the president of the United States should be creating de facto laws themselves. To do so would upset the separation of powers, the foundational architecture of our constitutional democracy.
What Congress can do—according to Chief Justice John Marshall’s opinion in Wayman v. Southward (1825)—is make a “general provision” that delegates to the executive branch the power to “fill up the details.”
But as Marshall himself noted, it can be difficult to distinguish between “important subjects which must be entirely regulated by the legislature itself” and areas where executive agencies can fill up the details. “The line has not been exactly drawn” between the two, Marshall admitted. According to the standard established a century later in 1928, Congress must give an agency “an intelligible principle” to direct and govern its rulemaking. If Congress writes laws that lack intelligible principles for agencies to follow—leaving agencies to make it up on their own—then Congress is unlawfully delegating its lawmaking authority.
You might think: Who cares? At first glance, concern about nondelegation can seem like quibbling over technicalities. Most people are (understandably) less concerned with where a law came from than how it affects them.
But the truth is that unlawful delegation ultimately affects everyone—because it undermines the foundations of our democratic republic.
Because this is a topic that can make people’s eyes glaze over, we’re going to use a television episode of The X-Files to help illustrate what’s at stake.
Bear with us.
You can’t control it
“Arcadia,” a sixth-season episode of The X-Files, is set in a fictional planned community in California called The Falls.
The Homeowners Association is the legislative body that governs The Falls. They draft laws that dictate what residents of The Falls can and can’t do—everything from what color they must paint their mailboxes (desert sage) to whether they can put up a basketball hoop (absolutely not).
But to make their community even more perfect, the Homeowners Association creates an autonomous body: a literal trash monster that lives in the ground. The homeowners task the trash monster with keeping the community beautiful and orderly.
Now: There is nothing wrong with a legislative body delegating enforcement of the law to someone else. That’s what the legislature is asked to do in the U.S. Constitution: The legislative branch makes the law and the executive branch enforces the law.
But the Homeowners Association didn’t exactly pass down intelligible principles for the trash monster to follow. They conjured up the monster with a general provision to make sure residents don’t disrupt or sully their perfect community. The monster decides for itself that the best way to keep the community orderly is to kill any resident who gets out of line—for example, anyone who puts an ugly whirlygig on their front lawn or allows their street lamp to burn out.
That’s a lot more than merely “filling up the details.” The Homeowners Association has essentially delegated its lawmaking authority to the trash monster, allowing it to create de facto laws without any legislative input.
“It’s our fault,” one bloodied resident confesses to Agent Scully while trying to hide from the monster. “The original homeowners—we asked for it and now we can’t stop it.”
“You didn’t know exactly what you were getting into, did you?” Agent Mulder says in a confrontation with the president of the Homeowners Association. “I mean, you can summon its existence, you can give it life, but you can’t control it. The best you can hope for is to stay out of its way.”
In the real world
And this, in a nutshell, is the problem with congressional delegation: When Congress delegates its legislative powers to the executive branch, it loses control—which means voters lose control. The more de facto lawmaking happens in the executive branch, the less voters are able to hold the government accountable (through elections) for bad laws. And unlike legislators, bureaucrats have no incentive to build compromises with those they disagree with—which means the “laws” they hand down are more likely to be draconian. Like the residents of The Falls in The X-Files, we can find ourselves beholden to rules that come not from our representatives, but from figures we have no control over.
And that’s something that should frighten everybody.
> Read about Pacific Legal Foundation’s new case involving the nondelegation doctrine: Marine veteran with expunged record fights unconstitutional registry rule (John Doe et al. v. U.S. Department of Justice)