Rumors of the Non-Delegation Doctrine’s Demise Are Greatly Exaggerated
Earlier this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court but not decided. I noted that the Court could use this case—in which a substantial amount of discretionary authority appeared to have been delegated to the Attorney General—as a vehicle for re-asserting the viability of what’s been called the non-delegation doctrine.
This doctrine holds that the purpose of the separation of powers was to ensure that the power to make the laws, and the power to enforce them, would not fall into the same hands. This, the Framers believed, was the source of tyranny and thus a threat to liberty. Implicit in the separation of powers, then, is the idea that Congress cannot delegate its exclusive legislative authority under the Constitution’s Article I to either of the other two branches.
However, in over 200 years, the Court has only invoked the non-delegation doctrine in two cases, both in 1935. But since that time—despite enormous growth in the number and rule-making power of federal agencies—the Court has never found that Congress had unconstitutionally delegated legislative power to the president or an agency of the executive branch. The Court’s reticence in this respect has fostered the growth of the vast government bureaucracy that is now called the administrative state.