Non-Restrictive Breadth: Review of “The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine” – Part 1

Book review – The Administrative State Before the Supreme Court, Perspectives on the Nondelegation Doctrine.  Edited by Peter J. Wallison and John Yoo (The American Enterprise Institute (AEI) Press 2022).

The ever-increasing reach of the administrative state has spurred vigorous debate among lawyers, scholars, and policy-makers.  To the dismay of many conservatives, the Supreme Court has taken few steps to restrict the breadth of law-making power exercised by many Executive Branch agencies.  For originalist constitutional scholars, Article I, Section 1 speaks directly to this issue – “All legislative Powers herein granted shall be vested in a Congress of the United States.”  Accordingly, because of this Vesting Clause, the President and Executive Branch officials, pursuant to Article II, are to execute or implement the laws, but they cannot create them.  That structure is consistent with James Madison’s concern, expressed in Federalist No. 47, that what we describe as the separation-of-powers doctrine is necessary to avoid the “tyranny” that could be caused by the consolidation of powers in one of the branches.

Delegations of authority from Congress to executive agencies nevertheless have occurred since our Founding.  In Wayman v. Southard (1825),1 Wayman v. Southard, 23 U.S. 1 (1825), Chief Justice John Marshall acknowledged that no exact line had been drawn between Congressional (legislating) and Executive (executing) powers, but he observed that “important subjects” were reserved to the former, while subjects of “less interest” could be entrusted to the latter, “to fill up the details.”  In contrast, in 1928, in J.W Hampton Jr. & Co. v. United States,2J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), the Court applied an entirely different articulation – delegations of lawmaking may proceed if Congress has articulated in law “an intelligible principle” to which the agency is “directed to conform.”  

The “high point” of the nondelegation doctrine occurred in 1935, when two programs of President Franklin D. Roosevelt’s New Deal were invalidated on nondelegation grounds:  Panama Refining Co. v. Ryan, 3Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), (holding that a National Industrial Recovery Act (NIRA) provision that granted the president the power to prohibit the sale of certain oil products constituted an improper delegation of legislative power), and A.L.A. Schechter Poultry Corporation v. United States 4A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), ;(striking down an NIRA provision that authorized the president to establish “codes of fair competition”).  Since that time, however, the Court has not invalidated any delegations of authority, although, as discussed below, several Justices recently have suggested that the doctrine should be reinvigorated. 

 One catalyst for The Administrative State Before the Supreme Court may be a vigorous dissent by Justice Gorsuch in United States v. Gundy (2019) 5Gundy v. United States, 588 U.S. ___ (2019),, in which the Court upheld a delegation of authority to the Attorney General to prescribe a rule of retroactivity for the registration of convicted sex offenders.  Justice Gorsuch, in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, criticized the “intelligible principle” test as not grounded in either the Constitution or its history, and he urged the courts to revitalize the nondelegation doctrine – the courts “must call foul when the constitutional lines are crossed.”  Among the questions he posed for a new test are whether the statute assigns the agency “only the responsibility to make factual findings,” whether the statute identifies the facts for the agency to consider “and the criteria against which to measure them,” and, “most importantly, did Congress, and not the Executive Branch, make the policy judgments?”  Justice Gorsuch concluded that only then “can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.”

This collection of essays is a welcome contribution to the literature on this subject.  Two scholars are its editors – Peter J. Wallison is the author of Judicial Fortitude – the Last Opportunity to Rein in the Administrative State, and is a senior fellow emeritus at AEI.  John Yoo is a Professor of Law at the University of California, Berkeley, a renowned expert on constitutional law issues, and he also served as a Deputy Assistant Attorney General at the U.S. Justice Department’s Office of Legal Counsel from 2001-2003.  They have assembled the analyses of ten other legal scholars. These include Judge Douglas H. Ginsburg of the United States Court of Appeals for the District of Columbia Circuit, Professor Jonathan H. Adler of the Case Western University School of Law, Professor Gary Lawson of the Boston University School of Law, Joseph Postell, author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government, and David Schoenbrod, Trustee Professor of Law at New York Law School.  These writers offer differing perspectives on how to address the problem of Congressional delegations.

In Part 1 of this review, I distill these writers’ principal insights.  I continue that discussion in Part 2; that section concludes with some of my reflections on the writers’ recommendations on how to recast, and reinvigorate, the nondelegation doctrine.

Supporters of the administrative state likely will disagree with the premise of this book, because they may contend that nondelegation is not a problem of constitutional dimension, and will salute agency lawmaking as marking the continued progress of expertise and dispatch in addressing economic and social issues, particularly given the persistence of Congressional lethargy – its seeming inability to legislate on controversial issues.6See Gillian Metzger, 1930’s Redux: The Administrative State Under Siege, 131 Harv L. Rev.  2 (2017), Nevertheless, many would agree that broad delegations reduce the accountability of Congress to the public.  Peter Wallison observes a revitalized nondelegation doctrine “would force Congress to do its job – to make the difficult policy decisions for the country that a legislature is supposed to make, instead of passing these decisions to the administrative agencies of the executive branch.” 

In turn, Professor Jonathan Adler explains that the existing delegation “universe” means that legislators do not have incentives to build coalitions, or to resolving their often bitter differences through politically controversial compromises.  Legislators instead rely on congressional leadership to “operate the levers of power without accountability to the broader legislative body – or, therefore, to the voters more generally.”  Therefore, if the nondelegation doctrine is to acquire any force, we will need concrete recommendations for its reformation.  These essays provide a range of solutions for our consideration.

For example, in A “Step Zero” for Delegation, Professor Adler would impose a very strict test for lawful delegations, in essence a “zero baseline” that would place the burden of proof on the executive agency to demonstrate a clear authorization to enact legislative rules, one that would need to be explicit in the plain language of the pertinent statute.  In that context, one can point to the Supreme Court’s recent decision in West Virginia v. Environmental Protection Agency (June 30, 2022) 7West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022), , in which the Court invalidated an EPA rule that required coal plants to reduce their emissions by reduction of their production of electricity or investment in alternative energy sources.  Chief Justice Roberts applied the “major questions” doctrine  – situations in which agencies assert “highly consequential power beyond what Congress could reasonably understood to have granted.”

The agency also would need to establish that the subject it would regulate was one that Congress had in mind when it first delegated the cited authority, or at least was of the kind that the statute was designed to address.  Professor Adler points out that congressional delegations are written very broadly, and without regard to changed circumstances, e.g., new technologies or unanticipated developments in a regulated industry.  That open-ended type of delegation results in agencies engaging in sweeping policy interventions to fill a vacuum.  Finally, Adler contends, the weight of the evidence necessary to support the asserted delegation should be proportional to the breadth and scope of the delegated power, i.e., courts should presume that Congress will be more explicit in a statute when it is delegating large amounts of power.

Professor Michael B. Rappaport suggests that courts could undertake their review function through an analysis that would “bifurcate” government activities, i.e., creating two tiers of judicial review – one “lenient” and one “strict.”  For the first category, there would be significant permissible delegations of policymaking discretion as to military and foreign affairs, in which the Executive Branch has substantial responsibility, but also in the spending and management of government property.  In contrast, if federal law will regulate the private rights of individuals in the “domestic sphere,” he explains that the “Constitution imposes a strict prohibition on delegations.”  In those areas, the nondelegation doctrine would be a bar to agency policymaking authority, and a court’s inquiry will become more straightforward – whether the agency’s authority is one “to interpret the statute or find facts.”

Todd Gaziano and Ethan Blevins of the Pacific Legal Foundation recommend that judicial scrutiny of challenged delegations deploy the “void-for-vagueness” doctrine, which is typically applied to the review of criminal statutes.  They contend that clear legislative definitions are needed for “coercive civil statutes” because there are fewer procedural protections against erroneous agency decisions than for criminal prosecutions.  They suggest that a court could invalidate a regulation if the underlying statute fails to include any binding standards that limit the agency’s rulemaking authority – in contrast to the reliance on often too malleable factors that agencies usually consider, and which favor broad agency discretion.  Their robust test would validate a delegation only if the law provided sufficient standards for the judiciary to evaluate the lawfulness of the delegation.

Professor David Schoenbrod advocates that, whether the Supreme Court adopts Justice Gorsuch’s proposed test, or “sticks with” the “intelligible principle” formulation, there nevertheless should be an additional, more rigorous, test that “directly enforces the Constitution’s bar on the lawmakers delegating the power to make law.”  In that context, a court would invalidate unlawful delegations with respect to any agency rule that had been found to be a “significant regulatory action” by the Administrator of the Office of Information and Regulatory Affairs (OIRA), an office within the Executive Office of the President, if the rule had not been approved through the legislative process.  OIRA’s own rule, promulgated by Executive Order 12866 (1993), 8Executive Order 12866, 50 Fed. Reg. 190 (October 4, 1993), uses multiple factors to determine “significant,” including whether the agency rule will have “an annual effect on the economy of $100 million or more.”  

In that context, I note that another potential “trigger” for heightened scrutiny of congressional delegations already exists –  the Congressional Review Act (CRA).9Congressional Review Act, 5 U.S.C. §§801-808,  Under that statute, most agencies must transmit their rules to Congress for review; the rule cannot take effect earlier than 30 days from transmission or publication in the Federal Register.  Congress must act to disapprove the rule, via joint resolution submitted to the President, within 60 days of transmission of the rule in order to keep it from going into effect. The CRA has been invoked only occasionally – the 115th Congress nullified 16 rules issued by the Obama Administration. Other than those 16 rules, Congress has only nullified 4 additional rules since 2001.

Professor Schoenbrod does not cite the CRA, but he also suggests a somewhat similar approach – a reviewing court could delay invalidating a rule, for a limited time, in order to give the Congress an opportunity to approve it.  He believes that this test would make the legislators more accountable than under Justice Gorsuch’s proposal because Schoenbrod wants Congress to “embed the major policy choices in instructions” to the agency on how to conduct its rulemaking that will implement those instructions.  He acknowledges that his proposed measure for a heightened scrutiny of challenged delegations will necessarily omit agency rules that would fall below the $100 million mark of annual economic effects, but there is an inevitable “arbitrariness” in any bright-line test.

Schoenbrod also acknowledges that the “significant regulatory action” criterion would not work for rules promulgated before that system went into effect in 1994.  The retroactive application of this new test would be unsettling.  But Congress prospectively could establish “a fast-track process that would require prompt, up-or-down votes on whether to approve or disapprove rules” that were identified as significant under the OIRA order.  He explains that the ratification of an agency’s authority to proceed by rulemaking will not preclude litigation challenging the legality of the rule on other grounds. 

This concludes Part 1 of this review.  Part 2 will be posted soon.  There, I will complete my review of the authors’ recommendations on how to revitalize the nondelegation doctrine.  I also will provide my own reflections on how this problem can be addressed.


  • 1
    Wayman v. Southard, 23 U.S. 1 (1825),
  • 2
    J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928),
  • 3
    Panama Refining Co. v. Ryan, 293 U.S. 388 (1935),
  • 4
    A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935),
  • 5
    Gundy v. United States, 588 U.S. ___ (2019),
  • 6
    See Gillian Metzger, 1930’s Redux: The Administrative State Under Siege, 131 Harv L. Rev.  2 (2017),
  • 7
    West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022),
  • 8
    Executive Order 12866, 50 Fed. Reg. 190 (October 4, 1993),
  • 9
    Congressional Review Act, 5 U.S.C. §§801-808,
Theodore C. (“Ted”) Hirt is an Assistant Editor for Anchoring Truths. He is a semi-retired attorney and a member of the District of Columbia Bar. He is a Professorial Lecturer in Law at the George Washington University Law School, where he teaches Electronic Discovery & Evidence. He is a graduate of the University of Chicago Law School and Brown University. From August 1979 to March 2016, he was an attorney (Trial Attorney, Senior Trial Counsel, Assistant Director, Senior Litigation Counsel) in the Justice Department’s Civil Division. He litigated and supervised cases in its Federal Programs Branch and litigated cases in its Office of Immigration Litigation. His work included the defense of challenges to federal laws and to agency authority. His areas of expertise have included First Amendment issues, including the Religion Clauses, and internet-related issues. He has written numerous articles on constitutional and administrative law issues, the Federal Rules of Civil Procedure, pretrial practice, and electronic discovery. He is a Gettysburg, PA Licensed Town Historian/Guide.
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