The Nondelegation Doctrine

Article I, Section 1 vests all legislative powers herein granted in Congress, and courts have long reasoned that Congress cannot give that power away. Yet Congress routinely authorizes agencies to write binding rules, set standards, and fill in details. The Supreme Court reconciled the two in J.W. Hampton, Jr. and Co. v. United States, decided May 28, 1928, holding that a delegation is permissible if Congress lays down an intelligible principle to which the agency must conform. Under that test, Congress may give agencies wide discretion so long as it sets the policy and the boundaries.

The Court has struck down a statute on nondelegation grounds only twice, both in 1935. In Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States it invalidated parts of the National Industrial Recovery Act, which let the President and private industry groups write codes of fair competition with almost no guidance. Since then it has upheld delegations to regulate in the public interest or set standards requisite to protect public health, as in Whitman v. American Trucking Associations in 2001.

In Gundy v. United States in 2019, Justice Neil Gorsuch, joined by two colleagues, called for reviving a stricter test, and several justices signaled interest. In FCC v. Consumers' Research in 2025, however, the Court upheld the Universal Service Fund, which lets the FCC and a private administrator set telecommunications fees, by a vote of 6 to 3. The related major questions doctrine now does much of the work of limiting broad agency claims. Supporters of a stronger doctrine say it restores accountability to elected lawmakers, while critics say it would cripple Congress's ability to address complex problems.