July 30, 2019


The Nondelegation Doctrine: Intelligible Principle or Unworkable Standard?

The Federalist Society’s Article I Initiative is focused on the critical issue of why the modern Congress is not functioning as the most powerful branch as envisioned by the Framers. In order to help engage new thought and discussion about the proper role of the Congress, the Initiative has just launched its third annual writing contest aimed at younger* thinkers.


The Nondelegation Doctrine: Intelligible Principle or Unworkable Standard?


Our Constitution vests legislative, executive, and judicial powers in three discrete, separate branches. Can Congress modify this constitutional structure by delegating its power to write laws to the administration? According to the Supreme Court’s ruling in Wayman v. Southard, the answer is no. How then do executive agencies possess the vast regulatory power we witness today? In J.W. Hampton v. United States, the Court held that agencies exercise executive, not legislative, power while writing regulations, so long as they are guided by an “intelligible principle” from Congress.

Whatever its justification, this caveat has proven to be the rule rather than the exception. Examples of the Court invalidating regulations for violating the doctrine laid out in Wayman are rare. However, in Gundy v. United States’ striking dissent, three justices called for the revival of the nondelegation doctrine. With Justice Alito signaling agreement in his opinion concurring with the majority, and Justice Kavanaugh’s recent ascent to the Court, it seems likely the issue will return to the Court’s docket. Is the doctrine in need of resuscitation? What would a revived doctrine look like? What would be its practical effects? And how should Congress prepare if they are forced by the Court to take a more active role in generating regulations?

We hope this contest will cultivate creative ideas that can improve legislative functionality and Constitutional accountability.

Click here to learn more about contest eligibility, rules and how to submit a paper!


*Participants must be age 40 or under.

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