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Originalism and Nondelegation

By Kevin Bizily (The Blake School)

Issue II: Federal Constitutional Structure


The safeguards of separated powers and checks and balances lie at the heart of the triumph of free government in the United States. While this system has proven incredibly successful throughout the past two and a half centuries of our history, it relies on an incredibly delicate balance between divided legislative, executive, and judicial authorities. Since the creation of the modern administrative state, this form of government has been under threat from the increasing delegation of Congress’ legislative power. This stands in conflict with the nondelegation doctrine, a principle that the power of any branch cannot be given to another. More specifically, Congress may not grant the authority to make law to the President or any executive agency. While the Supreme Court has held clearly that “[t]he nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government,” there remains much debate over its extent. [1] While there is strong consensus that neither can the executive branch legislate sua sponte nor can Congress permanently give it legislative power, some scholars have argued that “Any action authorized by law [is] an exercise of ‘executive power’ inasmuch as it [serves] to execute the law,” even if the action is legislative in nature. [2] As the constitutional vesting clauses and founding-era history make clear, the executive power only extends to carrying out the details of what Congress orders. Thus, the making of new law by the executive branch stands as blatantly unconstitutional.

New Deal Origins of the Administrative State


Delegation of legislative power to the executive branch has its roots in the response of President Roosevelt to the Great Depression using New Deal policies to address the economic crisis. As the excessive financial speculation of the 1920s grew to levels of incredible risk, financial disaster struck and the most precipitous stock market crash in history ensued. In the aftermath of the crash, severe recession took root and led to a lengthy period of unemployment and falling GDP. While the federal government under President Hoover slashed taxes and invested in an economic recovery, little impactful legislation was passed, and the Smoot-Hawley tariffs enacted to protect domestic industry only led to a decline in global trade. Facing dramatic levels of unemployment and rapidly falling stock prices from the Great Depression, exacerbated by agricultural damage from drought and the harsh policies of Prohibition, the American public had little tolerance left for President Hoover. When the Democratic challenger, Franklin Delano Roosevelt, began to campaign on promises of “a new deal for the American people,” he won in a landslide. Immediately after taking office, FDR set to work implementing the New Deal and implemented extensive policy change during only his first 100 days. While the New Deal would bring an end to the Great Depression and allow for significant economic recovery, it brought with it the creation of the modern administrative state.


It must be said, however, that this administrative component of the executive branch is not an entirely novel innovation of the New Deal. Rather, its origins trace back to the beginning of the nation, when the First Congress established the Departments of Foreign Affairs, Treasury, and War in 1789. Throughout the first century and a half of the nation’s existence, new and increasingly potent administrative departments were established to govern the growing country. By the 1920s, much of the federal government was “controlled by means of administrative regulations or orders, in the nature of subordinate legislation.” [3] Nevertheless, “[i]t was not until the New Deal that the modern agency became a pervasive feature of American Government.” [4] Roosevelt used his authority as President to create numerous agencies, known popularly as “alphabet agencies” due to the many acronyms by which they were referred. These regulatory bodies were formed to address all manner of economic and societal issues, yet they brought about governance not by elected representatives of the people but rather by unelected experts. This form of government seemed ideal to the progressive reformers who propagated it, because “[i]n their view, the system of separated functions prevented the government from reacting flexibly and rapidly to stabilize the economy and to protect the disadvantaged from fluctuations in the unmanaged market.” [5] Therefore, Roosevelt made use of academic advisers known as the “Brain Trust” and appointed numerous scholars and policy experts to direct his new agencies. This emphasis on expert bureaucratic government as the solution to national disaster spurred the formation of new agencies and an increase in power for administrators.


While there were numerous statutes enabling this administrative growth during FDR’s presidency, among the most significant was the National Industrial Recovery act of 1933 or NIRA, passed as a core part of the New Deal legislation. [6] Under the NIRA, the National Recovery Administration and Public Works Administration were established to regulate industry and stimulate the economy through infrastructure development, respectively. Furthermore, Congress authorized in the Act nearly $3.3 billion (equivalent to $77.2 billion today) for the President to spend generally on public works, which allowed Roosevelt to form a potent administrative state. While Congress did sign off on much of this New Deal policy, many agencies and regulations established by Roosevelt “were never even authorized by Congress.” [7] The bureaucracy of agencies soon became so sprawling that “[e]ven the Comptroller-General of the United States, who audits the government's accounts, declared he had never heard of some of them.” [8]


This administrative government created by Roosevelt carried with it an innate lack of accountability. Because the bureaucrats were experts selected by the President who ran their offices with little Congressional oversight, few protections existed against an abuse of administrative authority. Even Roosevelt eventually recognized that the increasing legislative and judicial work of agencies “threatens to develop a ‘fourth branch’ of the Government for which there is no sanction in the Constitution.” [9] Therefore, Congress enacted the Administrative Procedure Act or APA in 1946 in order to exercise better control over agencies and ensure transparency and democratic limitations on their authority. [10] While the APA was effective in ensuring greater fairness and public input in administrative decisions, and insofar as it improved judicial review of the regulatory process, it made little impact on the increasing quasi-legislative and quasi-judicial roles filled by executive agencies. Thus, the modern administrative agency was born. 


The Current State of Agency Power


Bureaucratic power has reached an extensive level in the current day, significant expansion of the scope and authority of administrative agencies. The legislative role of agencies has expanded so far that “18 rules were issued [by agencies] for every law enacted [by Congress].” [11] While some of these rules are within the scope of enforcing and implementing policies authorized by Congress, many others are enactments of legislation drawing from delegated power. Agencies and commissions of every kind imaginable hold the power to promulgate detailed codes of regulations that make up vast sections of American law. The same agencies which enact these regulations are often responsible for enforcing and interpreting them, giving them unchecked power over a particular subject. The only substantial limiting factors on this power are the initial authorizing act, the need to seek continued appropriations, and any limitations on the agency passed by Congress. Even though “Congress can and does legislate through the appropriation process” and can always limit agencies or revoke authorization to control an agency’s actions, such actions have become uncommon. [12]


Thus, the principal de jure limitation on agency power is the initial authorization act. Being the very source from which agencies derive their power, these acts always set the boundaries of an agency’s power. Nevertheless, due to Chevron deference, agencies are given broad ability to interpret any ambiguities in these authorizing statutes subject only to the criteria of reasonability. [13] Further enabling agency powers under the Chevron doctrine, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” [14] The decision in Chevron granted what is usually the “province and duty of the judicial department,” that being the authority “to say what the law is,” to administrative agencies in select cases notwithstanding the APA’s affirmation that courts may review “all relevant questions of law” in an agency’s decision. [15] Despite these problems in the doctrine of Chevron deference, it remains a staple of modern administrative law that serves to enable broad bureaucratic power. 


This state of poorly checked administrative power has become the norm within the American government, as an ever-increasing number of agencies constantly churns out an ever-increasing number of regulations with little oversight. This status quo of governance by bureaucracy has survived due to a presumption that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” [16] Perhaps this is accurate, and Justice Kagan’s remark that if delegation is unconstitutional then “most of Government is unconstitutional” is certainly demonstrative of the heavy legislative role of administrative agencies. [17]


History of Separation of Powers in the United States


This unconstrained excessive delegation of legislative authority by Congress poses conflicts with the very separation of powers itself, which stands as perhaps the most important and defining feature in American constitutional government. The necessity of such division of government is best made evident through writings in the Federalist Papers, arguing for the enactment of this system. In justifying the existence of government itself, Madison famously wrote in Federalist 51 that “If men were angels, no government would be necessary.” [18] However, men are no angels and our behavior so often infringes upon the life and liberty of others. Government and the rule of law are therefore necessary for the existence of civil society, however government itself poses a risk of violating these rights. Madison continued his rhetoric on government, remarking that “If angels were to govern men, neither external nor internal controls on government would be necessary.” [19] Our governments, however, are clearly not composed of angels. As Montesquieu warned, “constant experience shows us, that every man invested with power is apt to abuse it; he pushes on till he comes to the utmost limit.” [20] Many governments have descended into tyranny and despotism whenever power is centralized under the rule of a single prince. “To prevent this abuse, it is necessary from the very nature of things that power should be a check to power;” that each organ of government be divided and made independent from the others. [21] To establish a truly free republic, “the constitution must be so designed that, although the citizens are opposed to one another in their private attitudes, these opposing views may inhibit one another.” [22] Therefore, it is clear that complete division of governmental powers is essential to maintaining a successful democratic government, free of the threat of descent into autocracy and tyranny.


The roots of this American political tradition of separated government trace back to the English system of constitutionalism. Although the United States declared its independence from Britain in reaction to abuses arising from the centralization of power in an overseas monarch, the common-law governmental structure in England provided a model for the Framers to perfect and hone. Even during the era of feudalism in Europe when all governmental authority lied with the nobility, the English began to implement restraints on their power with the Magna Carta. Facing a revolt of barons incensed by excessive fines and feudal duties, King John was forced to issue a declaration of liberties for the people of England. [23] The resulting decree made the King himself subject to checks and balances from a council of barons, whose assent was needed to enact law. [24] Although King John himself failed to abide by the Magna Carta and revoked some of its key provisions, it provides the first example of division of authority in the English common-law tradition. Shortly after the issuance of the Magna Carta, the council of barons developed into a fixed Parliament which would expand in Montfort’s Parliament and the Model Parliament to include representatives of the Third Estate (as the common people were known). Over the course of the next five-hundred years, the common-law separation of powers strengthened as the Houses of Lords and Commons were bifurcated and the executive powers once held by the nobility were vested in a national bureaucracy. 


This system of common-law separation of powers served to prevent England from becoming an absolutist monarchy even as other major European powers did. That said, the English system had deep flaws such as the judicial power of the House of Lords and the weak separation between prime minister and parliament which still permitted the centralization of power. This in turn led to abuses of power such as the weakening of local governments, use of the military to police cities, the prevalence of absentee governance, and, most famously, taxation of the colonies without representation in Parliament. Therefore, when drafting the United States Constitution, the Framers were careful to create a constitutional structure “where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.” [25]


Under the tripartite government established in the Constitution, legislative, executive, and judicial powers are wholly divided from each other in independent organs of government. Crucially, the apolitical and impartial judicial branch is sequestered through life tenure from the political system to ensure fair adjudication of disputes irrespective of the political landscape. Within the political element of government, power is divided between a decisive executive President and the deliberative legislative Congress, itself split as a bicameral body into a separately elected House of Representatives and Senate. This divided structure of government has made it impossible for power to completely centralize in the hands of a person or political faction “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community,” checking the power of any single authority. [26]


Given the efficacy of a separated government in preventing authoritarian rule or infringement of civil liberty in the United States, “the real key to the distinctiveness of America” from the multitude of totalitarian and abusive states  “is the structure of our government.” [27] Due to the importance of this divided structure, the framers knew it as the “sacred maxim of free government.” [28] As the historical record bears, “the preservation of liberty” which has been long sought by this nation “requires that the three great departments of power should be separate and distinct.” [29]

Nondelegation According to the Original Meaning


In order that the legislative, executive, and judicial departments remain completely distinct in their powers, it is essential that neither one exercise the function of the others. However, delegation of power, particularly that of legislative power to the executive branch, has become a hallmark of the modern administrative state. This principle, known as the nondelegation doctrine, that the departments’ powers must remain completely distinct, and therefore that Congress may not delegate its legislative power, stands in opprobrium to this current trend of administrative legislation. Although several scholars have argued the legislative power is not exclusive to Congress and may be delegated, the nondelegation doctrine is clearly substantiated within the Constitution’s original meaning for several reasons. First and most plainly, the text of the Constitution’s vesting clauses indicates exclusive grants of power to each branch. In addition, the establishment of a strong separation of powers by the Framers makes emphatic that the legislative authority of Congress is nondelegable. 


In comprehending whether a nondelegation doctrine exists in the Constitution, the most essential component to consider is the Constitutional text itself. It is for this reason that the three vesting clauses, which grant Congress, the President, and the judiciary their respective powers, are the foundation of the nondelegation doctrine. In granting Congress its legislative authority, the first of these clauses states that “All legislative Powers herein granted shall be vested in a Congress of the United States.” [30] The very phrasing of this clause gives strong evidence that the legislative power belongs exclusively to Congress because of the semantic rule of negative implication, better known as the maxim expressio unius est exclusio alterius (the expression of one is the exclusion of others). Under this interpretive canon, when the thing specified “can reasonably be thought to be an expression of all that shares in the grant or prohibition involved,” then it is implied that anything not specified does not share in the grant or prohibition. [31] Since the text of the vesting clause expressly states that all legislative powers are granted to Congress, the canon applies and the provision can be reasonably construed to exclude the executive and judicial departments from holding or exercising legislative power. As delegation of the legislative power would cause the executive branch to hold legislative power, it is in contradiction to the text of the vesting clause.


The conclusion of this textual analysis, that the executive branch cannot legislate, is supported by scrutiny into the historical context of the vesting clauses. These clauses, while extremely simple in form, are the backbone of the separation of powers system established by the Framers. As discussed earlier in the article, this system is perhaps the only effective means of preventing centralization of power and ensuing tyranny from occurring. Therefore, it is no surprise that the Framers considered any infraction towards the division of authority to be incredibly dangerous. Given the growth and increasing law-making role of the modern administrative state, the delegation of lawmaking authority to the executive department is the most noteworthy such infraction. This combination of legislative and executive power under a single organ of government was eschewed by the Framers due to the grave risk of tyranny it posed. As Montesquieu, a prominent influence on the founding generation, explained in his treatise The Spirit of the Laws, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” [32]


The nondelegation doctrine is also apparent from legal maxims and principles of the time, most prominently delegata potestas non potest delegare; delegated powers may not again be delegated. [33] The origins of this legal maxim are uncertain and subject to much debate, even drawing arguments that it was born from a transcription error. Duff and Whiteside, for example, posit that the maxim “owes its origin to medieval commentators on the Digest and Decretals, and its vogue in the common law to the carelessness of a sixteenth century printer.” [34] Regardless of its beginnings, the maxim became widely known after its inclusion in Branch’s Maxims and was accepted by the founding generation. [35] The maxim of delegata potestas became authoritative enough in its weight upon the Framers that it was recognized as an essential part of the common law in Justice Joseph Story’s Commentaries on the Law of Agency. In discussing the meaning of the principled, Justice Story explained the following:

“One, who has a bare power or authority from another to do an act, must execute it himself, and cannot delegate his authority to another; for this being a trust or confidence reposed in him personally, it cannot be assigned to a stranger, whose ability and integrity might not be known to the principal, or, if known, might not be selected by him for such a purpose.” [36]

As Story makes clear, any delegated power is entrusted to the delegate and therefore cannot be transferred. In the context of constitutional structure, this becomes highly relevant as all governmental powers were delegated power in the eyes of the Framers. Jefferson’s famous remark in the Declaration of Independence that “Governments are instituted among Men, deriving their just powers from the consent of the governed” implies that the power to govern originates with the people. [37] The Tenth Amendment further substantiates this, in characterizing the powers of government as “delegated to the United States by the Constitution.” [38] Essential to the very idea of government is that this power to make law is delegated from the people to the elected legislature only through their consent, as Locke explained in his Two Treatises of Government:


“This Legislative is not only the supream [sic] power of the Common-wealth, but sacred and unalterable in the hands where the Community have once placed it . . . For without this the Law could not have that, which is absolutely necessary to its being a Law, the consent of the Society, over whom no Body can have a power to make Laws.” [39]


Given that Locke was such a staunch advocate for a nondelegation doctrine, it is quite likely that the Framers were influenced by his arguments. Understanding the prevalence and widespread acceptance of the common law nondelegation maxim lends credence to the notion that the Framers would have structured the separation of powers with this in mind. In addition to the tripartite power structure in the Constitution and well-understood common law principles of nondelegation, there are several examples of a nondelegation doctrine being applied by the founding generation. To begin, the Framers at one point considered adding a nondelegation amendment to the Bill of Rights to make this principle absolutely clear and certain. The amendment, initially proposed by Madison, only failed because it was seen as “altogether unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate department” in the vesting clauses. [40] While there was of course a diversity of opinions within Congress surrounding this proposition, the overwhelming consensus that it was redundant is indicative that the Framers saw a nondelegation doctrine as already present. 


Further supporting this conclusion is the matter of post roads, in which Representative Theodore Sedgwick proposed amending the act establishing the Post Office in order to grant the President the authority to alter such roads. This was widely seen as a delegation of legislative power, and therefore the proposition failed. As Madison explained, in this circumstance “there did not appear to be any necessity for alienating the powers of the House; and that if this should take place, it would be a violation of the Constitution.” [41] Regardless of whether the enumeration of post roads actually constituted a legislative matter that could not be delegated, the Framers’ arguments surrounding the question make clear that a nondelegation doctrine was present from the beginning. [42] Therefore, “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” [43]


Judicial Interpretation of the Nondelegation Doctrine


Despite its strong textual grounding and historical foundations in the separation of powers, the nondelegation doctrine has come under criticism, most notably from Mortenson and Bagley, on the grounds that “[t]he executive power, however, was simply the authority to execute the laws—an empty vessel for Congress to fill” and therefore “[a]ny action authorized by law was an exercise of “executive power” inasmuch as it served to execute the law.” [44] Indeed, even under a strong application of the nondelegation doctrine, not all Congressional grants of discretion to the executive would be unconstitutional. Crucial to this matter is the distinction between impermissible delegation of legislative power and permissible authorization to use discretion via the executive power, and more broadly the distinction between executive and legislative authority. Hamilton’s definition, that “[t]he essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society,” suggests that the executive department is strictly limited in which rules it can enforce without the assent of the legislature. [45] Nevertheless, the Framers understood that “the good of the society requires that several things should be left to the discretion of him that has the executive power.” [46]


Chief Justice Marshall’s opinion in Wayman v. Southard, ruling that Congress may delegate the authority to set rules of procedure to the Courts, makes the heart of the nondelegation doctrine’s application clear. [47] As Chief Justice Marshall put it, “It will not be contended that Congress can delegate . . . powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the legislature may rightfully exercise itself.” [48] Therefore, “important subjects … must be entirely regulated by the legislature itself” and for subjects “of less interest … a general provision may be made and power given to those who are to act under such general provisions to fill up the details.” [49] Marshall’s discussion of nondelegation makes evident two essential elements of the doctrine: Firstly, Congress may not delegate the authority to regulate an important subject. And when Congress does delegate the authority to regulate a minor subject, it must set guidelines to direct the relevant agencies in this task. 


With respect to the first point of the nondelegation doctrine, it has been most frequently discussed in light of the major questions doctrine. While not directly restricting the ability of Congress to delegate power, the major questions doctrine has important effects insofar as it prevents agencies from seizing power without Congressional approval. In short, the major questions doctrine is a presumption that an agency has not been delegated power to decide an issue of major political or economic significance unless Congress has expressly stated that such delegation has occurred. As Justice Scalia put it, “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions–it does not, one might say, hide elephants in mouseholes.” [50] In order to exercise delegated power, “something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.” [51]


However, the major questions doctrine “has been understood in two radically different ways—weak and strong.” [52] The “weak version” of the doctrine is essentially an exception to the principle of Chevron deference, which aims “to limit Chevron’s reach, or to blunt its force, by depriving agencies of Chevron deference in a certain set of cases” involving significant political and economic issues. [53] In contrast, the “strong version” of the major questions doctrine functions as a clear statement canon of interpretation, presuming delegation to act on important issues was not granted by Congress unless the statute includes a clear statement to the contrary. However, even the strong version of the major questions doctrine does not serve to enjoin excessive or unconstitutional delegation of legislative power. Instead, it acts as a prophylactic measure, which “overprotects the nondelegation principle by increasing the cost of delegating authority to agencies—namely, by requiring Congress to speak unequivocally in order to grant them significant rulemaking power.” [54] Thus, while the major questions doctrine serves an important function insofar as it constrains agencies from claiming powers they do not necessarily have, it does not affect clear but unconstitutional delegations of legislative power.


The second important point of the nondelegation doctrine is largely governed by the intelligible principle test. This test sets a general limit on any delegation of power from Congress, requiring it to set out an “intelligible principle” for the executive department to follow whenever power is delegated. This arose from the landmark case J.W. Hampton Jr. & Co. v. United States, adjudicating whether the provision in the Fordney-McCumber Tariff granting the President discretion to adjust tariff traits to ensure prices of domestic goods were competitive. [55] The statute at issue gave quite precise and clear instructions to the President, permitting him only to adjust tariffs when  “the duties fixed in [the] Act do not equalize the said differences in costs of production in the United States and the principal competing country,” and even then only insofar as the adjustments are “necessary to equalize the [costs of production].” [56] Although this statute clearly delegates the authority to set the tariff rate from the Congress to the President, it also placed strong guidelines around how this rate could be adjusted. In its ruling, the Court determined that “[i]f Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise a discretionary power] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” [57] The foundations of this test  “Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations.” [58] While this restriction within the intelligible principle test is important in constraining delegations of executive discretion, it has also been applied to permit the delegation of legislative power in cases such as Mistretta v. United States. [59]


In Mistretta, the Supreme Court applied the intelligible principle test to uphold the creation of the US Sentencing Commission and delegation of legislative power to them. Under the authorizing Sentencing Reform Act provisions from the Comprehensive Crime Control Act, the USSC was given broad authority to write guidelines for sentencing in federal criminal cases. [60] Although the Supreme Court has held that these guidelines are not compulsory for judges, the guidelines nevertheless carry the force of legislation. [61] While it would seem that such a statute is plainly an unconstitutional delegation, the Supreme Court instead held that “Applying this ‘intelligible principle’ test to congressional delegations, our jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” [62] And in fact, the intelligible principle requirement was likely met because “[t]he [Sentencing Reform Act] outlines the policies which prompted establishment of the Commission, explains what the Commission should do and how it should do it, and sets out specific directives to govern particular situations.” [63] Nevertheless, the Commission was granted broad authority to create the laws for criminal sentencing with only a few Congressional standards. Despite this plausibly accurate application of the intelligible principle test in Mistretta, the core of the nondelegation doctrine, that “the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power,” went ignored. [64]


The principle established in Mistretta reshaped the intelligible principle test, using it not to constrain delegations of executive discretion but instead to permit the transfer of legislative power to administrative agencies. Hence, the separation of powers was not enforced through the nondelegation doctrine due to a theory of lawful congressional delegation. However, as Justice Scalia explained in dissent:


“The whole theory of lawful congressional ‘delegation’ is not that Congress is sometimes too busy or too divided, and can therefore assign its responsibility of making law to someone else, but rather that a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine -- up to a point -- how small or how large that degree shall be.” [65]


Thus, the intelligible principle test acts to place a limit on how great a degree of discretion can be granted; Congress must give boundaries so a grant of executive discretion is not used to usurp legislative power. This discretion is permissible only because “from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations – ‘not for the government of their departments, but for administering the laws which did govern.’” [66] While both the intelligible principle test and major questions doctrine have important implications in restraining executive and administrative power, neither impedes Congress from delegating a legislative power if it does so clearly and with some minor guidelines. Thus, the ruling in Mistretta was erroneous and directly contrary to Chief Justice Marshall’s assertions in Wayman. The Court’s holdings restraining the power of New Deal agencies in Panama Refining Co. and A.L.A. Schechter reflects the core of the nondelegation doctrine which must continue to carry force, the precept 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.” [67]




In conclusion, the nondelegation doctrine is an essential element of constitutional structure, which serves to enforce the separation of powers so important to the Framers. A prohibition on any delegation of legislative power is entirely consistent with the original meaning of the Constitution, due to the negative implications created by the vesting clauses viewed in conjunction with common law understanding of delegation and separation of powers. Since Wayman was decided in 1825, the Supreme Court has upheld this view of delegated power. However, Mistretta has weakened the nondelegation doctrine by applying the intelligible principle test in such a manner to allow certain delegations of legislative power. This poses serious problems with the constitutional separation of powers, in allowing regulators to make and enforce rules outside of the democratic process. In addition to applying the requirements of the intelligible principle test and the major questions doctrine to keep agencies within the bounds of Congressional legislation, delegation of legislative power must always be enjoined. In short, the Constitution mandates that “a delegation of legislative authority” be an action “which Congress can never be supposed to intend and has not the power to make.” [68]

[1] Gundy v. United States, 588 U.S. ___ (2019).

[2] Julian Davis Mortenson and Nichloas Bagley, Delegation at the Founding, 121 COLUM. L. REV. 277 (2021).

[3] John Fairlie, Administrative Legislation, MICH. L. REV., Vol. 18, No. 3, 181 (1920).

[4] Cass Sunstein, Constitutionalism After the New Deal, HARVARD L. REV., Vol. 102, No. 2, 424 n. 9. (Dec. 1987).

[5] Id., 424.

[6] 48 Stat. 195.

[7] John Flynn, THE ROOSEVELT MYTH, 292 (1948).

[8] Id, 292.

[9] Franklin Delano Roosevelt, Message to Congress Recommending Reorganization of the Executive Branch (1937).

[10] 60 Stat. 237.

[11] Clyde Wayne Crews, Jr., Ten Thousand Commandments: An Annual Snapshot of the Regulatory State, 3 (2017).

[12] Louis Fisher, The Authorization-Appropriation Process in Congress: Formal Rules and Informal Practices, CATHOLIC UNIV. L. REV. Vol. 29, No. 4, at 53 (1979).

[13] Chevron U.S.A., Inc., v. National Resources Defense Council, Inc., 467 U.S. 837 (1984).

[14] Id., 834.

[15] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); 5 U.S.C § 706.

[16] Mistretta v. United States, 488 U. S., at 372 (1989).

[17] Gundy, slip op., at 17 (Opinion of Kagan, J.).

[18] The Federalist No. 51 (James Madison).

[19] Id.

[20]  Montesquieu, THE SPIRIT OF THE LAWS XI:4. (1748).

[21] Id.


[23] The Magna Carta was initially only made applicable to free persons in England, and not the serf population. However, as feudalism gradually became extinct within England, the Magna Carta became applicable de facto  to all persons in England.

[24] See Magna Carta Libertatum, §61.

[25] The Federalist No. 51 (James Madison).

[26] The Federalist No. 10 (James Madison).

[27] Justice Antonin Scalia, Opening Statement on American Exceptionalism to the Senate Judiciary Committee (Oct. 5, 2011).

[28] The Federalist No. 47 (James Madison).

[29] Id.

[30] U.S. CONST. ART. I, § 1.

[31] Antonin Scalia & Bryan Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, § 10 (2012).

[32] Montesquieu, XI:6.

[33]  John Bouvier, A Law Dictionary Adapted to 23 the Constitution and Laws of the United States of America and of the Several States of the American Union, n. 24, “Maxims” (citing 2 Co. Inst. 597; 5 Bing. N. C. 310; 2 Bouv. Inst. n. 1 1300) (Revised Sixth Edition 1856).

[34] Duff & Whiteside, Delegata potestas nono potest delegari; a maxim of American Constitutional Law, 14 CORNELL L.Q. 168 at 173 (1929), reprinted in 4 Selected Essays on Constitutional Law 291 (1938).

[35] See Thomas Branch, Principia Legis et Aequitatis, 19 (1st ed. 1753).

[36]  Joseph Story, Commentaries on the Law of Agency, § 13 (1839).

[37] Decl. of Independence, par. 2 (U.S. 1776).

[38] U.S. CONST. AMD. X, (emphasis added).

[39] John Locke, TWO TREATISES OF GOVERNMENT § 134 (Peter Laslett ed., Cambridge Univ. Press 1967) (1690)

[40] 1 ANNALS OF CONG. 760 (1789) (Joseph Gales ed., 1834).

[41] 3 ANNALS OF CONG. at 238-39 (1791).

[42]  For the sake of brevity, only the essential points from the nondelegation amendment and post-roads debates are discussed in this article. Ilan Wurman provides an in-depth overview of these matters and other historical evidence for a nondelegation doctrine, see Nondelegation at the Founding, YALE L. JOUR., Vol. 130, No. 6, 1503 (2021).

[43] Field v. Clark, 143 U.S. at 692 (1892).

[44] Mortenson & Bagley, Delegation at the Founding, supra, 280-81.

[45] The Federalist No. 75 (Alexander Hamilton).

[46] Locke, §159.

[47] 23 U.S. (10 Wheat. 1) 1 (1825).

[48]  Id., 42-43.

[49] Id., 43.

[50] Whitman v. American Trucking Associations, Inc., 531 U.S. at 468 (2001).

[51] West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (slip op., at 19) (Citing Utility Air Regulatory Group v. Environmental Protection Agency, 573 U.S. at 324 (2014).

[52] Cass Sunstein, There are Two “Major Questions” Doctrines, ADMIN. L. REV., Vol. 73, 475, 477 (2021).

[53]  Id., 477. See also Stephen Breyer, Judicial Review of Questions of Law and Policy, ADMIN. L. REV., Vol. 38, No. 4, 372 (1986) (discussing circumstances in which Chevron deference is inappropriate).

[54] Biden v. Nebraska, 600 U.S. ___ (2023) (Barrett, J., concurring) (slip op., at 4).

[55] 276 U.S. 394 (1928).

[56] 42 Stat. 858; 941.

[57]  Hampton & Co., 409.

[58]  Id., 406.

[59] 488 U. S. 361 (1989).

[60] 98 Stat. 1837.

[61] See United States v. Booker, 543 U.S. 220 (2005).

[62] Mistretta, 409.

[63] United States v. Chambless, 680 F. Supp. 793, 796 (ED La. 1988).

[64] Mistretta, at 417 (Scalia, J., Dissenting).

[65]  Id., at 417.

[66] Panama Refining Co. v. Ryan, 293 U.S. at 428 (1935) (citing United States v. Grimaud, 220 U. S. at 517 (1911)).

[67] Id.; A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 (1935).

[68] Wayman, at 42.

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