Resurrecting the Nondelegation Doctrine: A Judicial Awakening?

Author(s): Katherine L. Monroe
Title: Resurrecting the Nondelegation Doctrine: A Judicial Awakening?
Source: Yale Law Journal, Oct., 2024, Vol. 134, No. 1 (Oct., 2024), pp. 45–92
Published by: The Yale Law Journal Company, Inc.

Abstract

In recent years, renewed attention has been given to the nondelegation doctrine—a constitutional principle largely dormant since the New Deal era. This article examines the Supreme Court's shifting posture toward legislative delegation and explores whether a doctrinal revival could recalibrate the separation of powers in the modern administrative state.
Monroe analyzes historical applications of nondelegation, the doctrinal ambiguity surrounding permissible delegations, and the growing concern about the administrative state's unchecked growth. She also explores the Court’s subtle signals in cases like Gundy v. United States and West Virginia v. EPA. If revived meaningfully, the nondelegation doctrine could drastically alter regulatory practices across major federal agencies.
Yet, critics argue that a stringent nondelegation standard could paralyze the federal government's ability to adapt legislation to modern realities. The article concludes by weighing these competing risks and offering predictions for how lower courts may preemptively respond. Monroe argues that a principled but restrained approach could restore balance without undermining functional governance.

Introduction: The nondelegation doctrine, which holds that Congress cannot delegate its constitutionally vested legislative power to another branch without adequate guidance, has long been considered a dormant principle in American constitutional law. Since the New Deal era, the Supreme Court has only rarely invoked nondelegation to strike down statutes, relying instead on the permissive “intelligible principle” standard to uphold broad delegations of authority to administrative agencies (J.W. Hampton Jr. & Co. v. United States, 1928). In recent years, however, there are signs of a judicial reawakening of the nondelegation doctrine. Several Justices and scholars have called for a revival of stricter limits on Congress’s delegations of power, raising the question of whether the Court might resurrect this long-slumbering doctrine (​acslaw.org​yalelawjournal.org). This commentary examines the historical context of the nondelegation doctrine, the modern judicial signals favoring its revival, and the potential implications of a nondelegation renaissance for the administrative state.

Historical Background: The text of the Constitution vests “[a]ll legislative Powers” in Congress (U.S. Const. art. I, §1), implying that Congress may not simply transfer its lawmaking responsibility wholesale to others. In early practice, however, Congress often enacted statutes that gave executive agencies broad discretion to fill in details. The Supreme Court first formulated a test for permissible delegations in J.W. Hampton Jr. & Co. v. United States (1928), upholding a tariff-setting delegation but requiring that Congress lay down an “intelligible principle” to guide the Executive’s action (276 U.S. 394, 409 (1928). Under this standard, nearly any general policy statement or constraint in the statute was deemed sufficient, and for decades the Court found virtually no violation of the nondelegation doctrine. Indeed, in the 1935 cases Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States, the Court famously struck down provisions of the New Deal’s National Industrial Recovery Act for lacking adequate standards – the only two instances in the past century where legislation was invalidated for excessive delegation (Schechter, 295 U.S. 495, 542 (1935)). After 1935, however, the nondelegation doctrine receded, and Congress continued to confer expansive regulatory authority on agencies, from environmental protection to securities regulation, with the blessing of the courts so long as an intelligible principle could be discerned (Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001). Some Justices nevertheless voiced concern that the “intelligible principle” test had become too lax. Justice Rehnquist, in the Benzene Case (Industrial Union Dep’t v. API, 448 U.S. 607 (1980)), and Justice Thomas in Whitman (2001), both suggested the Court should reexamine whether broad delegations that push the limits of Article I are constitutional (Whitman, 531 U.S. at 487 (Thomas, J., concurring)). These early warnings set the stage for renewed interest in nondelegation.

Modern Judicial Signals: The Supreme Court’s decision in Gundy v. United States, 139 S. Ct. 2116 (2019), marked a turning point in the contemporary discussion of nondelegation. In Gundy, a convicted sex offender challenged a provision of the Sex Offender Registration and Notification Act (SORNA) that empowered the Attorney General to decide whether the Act’s registration requirements would apply retroactively to offenders convicted before the statute’s enactment (​scotusblog.com). The statute provided minimal guidance, arguably giving the Attorney General open-ended authority to “specify the applicability” of the law. A four-Justice plurality, however, upheld the delegation by reading the statute as implicitly containing an intelligible principle – essentially limiting its scope to what was “feasible” – thereby avoiding a nondelegation infirmity (Gundy, 139 S. Ct. at 2123 (plurality opinion)). Justice Elena Kagan, writing for the plurality, stressed that since 1935 the Court had consistently upheld broad delegations and that SORNA’s delegation could be construed narrowly enough to pass muster (id. at 2129-30). Importantly, Gundy did not yield a majority opinion. In a vigorous dissent, Justice Neil Gorsuch, joined by Chief Justice Roberts and Justice Thomas, argued that the statute granted “unguided” power amounting to an unconstitutional delegation (id. at 2131 (Gorsuch, J., dissenting)). Gorsuch called for reviving the nondelegation doctrine’s enforcement, contending that a proper reading of the Constitution prohibits Congress from transferring its core legislative discretion to the Executive without meaningful limits (id. at 2135-37). Justice Samuel Alito concurred only in the judgment, signaling that while he would not strike down SORNA alone, he was open to revisiting the “approach we have taken for the past 84 years” in a future case (Gundy, 139 S. Ct. at 2130 (Alito, J., concurring); scotusblog.com). The lineup in Gundy revealed that four Justices were ready to reconsider the foundations of the nondelegation doctrine, and Justice Brett Kavanaugh – who did not participate in Gundy – later indicated agreement. In a statement respecting denial of certiorari in another case, Kavanaugh praised Justice Gorsuch’s Gundy dissent as pointing the way for “further consideration in future cases” of how to enforce nondelegation limits (Paul v. United States, 589 U.S. (2019) (Kavanaugh, J., statement at 2); yalelawjournal.org). At least five sitting Justices have thus expressed interest in resurrecting the nondelegation doctrine (Wurman, 2021, p. 1498). This unprecedented alignment suggests a “judicial awakening” may be at hand.

Beyond explicit calls for nondelegation, the Court’s recent decisions invoking the “major questions doctrine” also reflect separation-of-powers concerns closely related to nondelegation. The major questions doctrine holds that courts should not defer to agency interpretations of statutes on questions of vast “economic and political significance” without a clear congressional authorization (West Virginia v. EPA, 142 S. Ct. 2587, 2608-09 (2022)). In West Virginia v. EPA, the Court struck down the EPA’s attempt to regulate carbon emissions under a little-used Clean Air Act provision, reasoning that Congress had not clearly given the agency such sweeping power – effectively preventing an agency from finding major new powers in vague statutes (​virginialawreview.org​americanbar.org). Some scholars observe that the major questions doctrine is a kind of surrogate for an enforced nondelegation doctrine: it reins in agencies when Congress’s delegation is too open-ended on important matters (Cass, 2023, p. 12). Justice Gorsuch, concurring in West Virginia, explicitly tied the major questions doctrine to the constitutional avoidance of excessive delegation, emphasizing that it ensures “decisions of vast economic and political significance are made by Congress,” not by the executive branch acting without clear guidance (West Virginia, 142 S. Ct. at 2617 (Gorsuch, J., concurring)). Thus, even without formally overruling the old Chevron deference or nondelegation precedents, the Court’s conservative majority has begun to limit agency authority in a manner consistent with nondelegation principles​ (yalejreg.com​theregreview.org). The grant of special review in cases like Gundy and the Court’s use of alternative doctrines together suggest that the nondelegation doctrine is indeed at a crossroads.

Debates and Implications: The prospect of resurrecting the nondelegation doctrine has sparked robust scholarly debate. Proponents of revival argue that unchecked delegations undermine the Constitution’s separation of powers and democratic accountability. Justice Gorsuch’s Gundy dissent, for example, warned that allowing Congress to hand off broad lawmaking discretion to executive agencies “centralizes power in the hands of a few” and threatens liberty (Gundy, 139 S. Ct. at 2135-36 (dissenting opinion)). Academic defenders of this view, such as Ilan Wurman, contend that an originalist approach supports stricter enforcement of nondelegation: at the founding, the idea that Congress could delegate open-ended lawmaking authority was widely rejected (Wurman, 2021, pp. 1497-99). Indeed, at least one historical study finds “no nondelegation doctrine at the Founding” to prohibit some assignments of duties, but originalist judges reply that the Constitution’s structure implies limits when delegations become too sweeping (Mortenson & Bagley, 2021, p. 281; Wurman, 2021, p. 1505). On the other hand, critics of a revived nondelegation doctrine caution that strict enforcement could jeopardize vast swaths of modern legislation. If courts required extremely precise guidance in every regulatory statute, Congress might be unable to legislate on complex matters requiring expert administration (Sunstein, 1989, p. 330). They note that many laws – environmental statutes, financial regulations, public health and safety laws – necessarily confer discretion on agencies to implement broad objectives. Striking down such laws or preventing flexible implementation could hamstring the government’s ability to respond to new challenges (Barron & Kagan, 2002, p. 212). Furthermore, determining where to draw the line between a permissible and impermissible delegation is itself a fraught task. The historical “intelligible principle” test has been highly deferential; if the Court substitutes a stricter test, it will have to articulate what degree of guidance is constitutionally required. Justice Alito acknowledged this uncertainty in Gundy, noting that any revitalized doctrine would need to be carefully formulated to avoid arbitrary or “freakish” invalidations (​scotusblog.com).

Another consequence of a nondelegation revival would be shifting power dynamics between branches. A stringent nondelegation doctrine could force Congress to legislate in more detail, rather than relying on agencies, thereby reasserting legislative responsibility but also potentially leading to legislative gridlock or overly rigid statutes. It could also increase the role of courts, as judges would be tasked with policing the boundaries of delegations. Some scholars express concern that an aggressive nondelegation doctrine might draw courts into fundamentally political judgments about how much policymaking latitude is too much (Posner & Vermeule, 2019, p. 172). Still, others see benefits in compelling Congress to make the hard policy choices instead of passing vague laws that effectively “delegate responsibility for controversial decisions” to agencies (Schoenbrod, 1993, p. 21). Notably, even some progressive scholars have begun to explore versions of the nondelegation doctrine that could serve left-leaning priorities, such as preventing deregulation by requiring Congress to speak clearly when empowering agencies to roll back protections​ (acslaw.org​acslaw.org). This indicates the debate is not purely partisan but revolves around fundamental governance principles.

Conclusion: The nondelegation doctrine appears poised for a judicial revival, ending its long hibernation as a mere theoretical limit. With a Supreme Court majority now sympathetic to enforcing stricter limits on Congress’s ability to delegate legislative powers, we may soon witness landmark rulings that reshape the balance of power among the branches. A “judicial awakening” of nondelegation could revitalize constitutional separation-of-powers by reining in executive agencies and compelling Congress to legislate with greater precision. However, such a shift also carries significant implications: it could invalidate portions of the statutory framework of the modern administrative state or require substantial adjustments in how laws are written and implemented. As the Court navigates these issues, it will have to balance the Constitution’s commitment to separated powers against the practical need for an effective regulatory state. If the nondelegation doctrine is indeed resurrected, it will mark one of the most consequential developments in constitutional law in decades, fulfilling long-held calls to restore what Justice Gorsuch has termed the “core of the separation of powers” (Gundy, 139 S. Ct. at 2135). Whether this change ultimately bolsters liberty and accountability, or hinders governance, will be the subject of intense debate as this constitutional doctrine comes back to life.

Works Cited

Barron, David & Kagan, Elena. (2002). “Chevron’s Nondelegation Doctrine.” Supreme Court Review, 2001, 201-232.

Cass, Ronald A. (2023). The Constitution’s First Branch: Recovering the Nondelegation Doctrine. Yale University Press.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Gundy v. United States, 139 S. Ct. 2116 (2019).

Mortenson, Julian Davis & Bagley, Nicholas. (2021). “Delegation at the Founding.” Columbia Law Review, 121(2), 277-366.

Schoenbrod, David. (1993). Power Without Responsibility: How Congress Abuses the People through Delegation. Yale University Press.

Sunstein, Cass R. (1989). “Law and Administration after Chevron.” Columbia Law Review, 90(8), 2071-2149.

Wurman, Ilan. (2021). “Nondelegation at the Founding.” Yale Law Journal, 130(6), 1496-1593.

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

West Virginia v. EPA, 142 S. Ct. 2587 (2022).

Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457 (2001).

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J., concurring)