Is Most of the Federal Government Unconstitutional?

The U.S. administrative state rests on a constitutional doctrine that is widely considered to have been abandoned over the last eight decades. Yet the nondelegation doctrine, which suggests that the federal Constitution limits Congress’s ability to delegate significant policy-making authority to administrative agencies, is a topic of significant debate among legal scholars. 

The U.S. Supreme Court has not invoked the nondelegation doctrine to strike down a statute since 1935. This past summer, in Gundy v. United States, the Court voted 5–3 to—yet again—uphold a statute against a nondelegation challenge. 

But Justice Alito concurred only in the judgment, saying that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Justice Kavanaugh did not participate in the Gundy case, but issued a statement a few months later indicating that he would be willing to revive the long-defunct doctrine. 

With the support of Justice Kavanaugh and Justice Alito, a majority of the Court would appear to be in favor of limiting Congress’s ability to delegate major policy decisions. Five votes in favor of the nondelegation doctrine could have major consequences. As Justice Kagan wrote, if the law in Gundy is unconstitutional, then “most of government is unconstitutional.”

The History of Nondelegation 

• The nondelegation doctrine has “nothing to do with the Constitution as it was originally understood,” according to two scholars’ review of thousands of pages from earlier Congress. In a new paper, Julian Davis Mortenson and Nicholas Bagley of the University of Michigan Law School argue that the founders had no objection to Congress delegating the power to make rules, as long as it did not permanently abdicate its legislative responsibilities. The distinction between legislative and non-legislative powers would have made little sense to the founders, they suggest, because the founders understood governmental powers in relational rather than binary terms. “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both,” Mortenson and Bagley conclude.  
• In a recent essay in The Regulatory Review, University of Pennsylvania Law School professor Cary Coglianese argues that the nondelegation doctrine is best understood as having many dimensions when considering the words “herein granted” in Article I of the U.S. Constitution. Coglianese explains that Congress is not prohibited from transferring any legislative power, but rather only the enumerated powers. Typically, the nondelegation doctrine is portrayed as having a single factor for courts to consider whether the statute provides an “intelligible principle.” Drawing on a more extensive article recently published in the University of Pennsylvania Law Review, Coglianese instead argues that there are six factors to consider when determining if a statute violates the nondelegation doctrine: the nature of action, basis for decision-making, extent of required process, degree of sanctions, range of regulated targets, and scope of regulated activities. Coglianese concludes that “by enumerating specific legislative powers and vesting them in Congress, the Constitution does indeed preclude the full transfer of a legislative power ‘herein granted’—it is simply that such a power  can only be understood by taking into account all of its dimensions.”

The Future of Nondelegation 

• Challenges with the nondelegation doctrine also have a temporal aspect, as “federal agencies use decades-old congressional delegations of authority to regulate new technologies and circumstances that were wholly unanticipated by the enacting Congress and perhaps would not garner support in the current Congress.” Jonathan Adler and Christopher Walker, professors of law at Case Western Reserve University and Ohio State University respectively, argue in a forthcoming Iowa Law Review article that this problem has grown in the modern era due to Congress’s relative inaction. Congress could address the temporal issue, they argue, by regularly legislating and reauthorizing agencies, as well as using appropriations processes to regulate agency behavior.
• In a forthcoming article in the Wisconsin Law Review, Andrew Coan advises “close observers” of the Supreme Court to “temper their expectations” about a reinvigorated nondelegation doctrine. Coan asserts that the doctrine falls squarely within a category of constitutional domains in which the Court is likely “to employ some combination of hard-edged categorical rules and strong deference to the political process.” Based on this model, Coan outlines eight potential courses for the nondelegation doctrine in light of the current Court composition, but concludes that the Court is unlikely to render any “sweeping revolution” to the doctrine.
• In an article in The Regulatory Review, Kristin E. Hickman, professor of law at the University of Minnesota Law School, argues that the Supreme Court’s decision in Gundy v. United States “offered hope” to those who wish the Court would apply the nondelegation doctrine “with more (or really any) rigor.” Even though the Court upheld the statute at issue against a nondelegation challenge, Hickman notes that Justice Gorsuch’s “blistering” dissent and Justice Alito’s concurrence provide hope that the Court’s next nondelegation ruling will be the one. Nevertheless, she concludes that “key obstacles remain in the way of a more rigorous nondelegation doctrine,” including stare decisis and the need to find a replacement for the current intelligible principle standard.