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Nondelegation doctrine

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What is nondelegation?
The nondelegation doctrine is a principle of constitutional and administrative law that limits the ability of lawmakers to delegate their legislative powers to executive agencies or private entities. In other words, lawmakers are limited in their ability to allow others to carry out laws through regulations, according to the doctrine.[1][2][3][4]

Why does it matter?
The nondelegation doctrine is part of a broader debate regarding the authority of agencies to create, adjudicate, and enforce their own rules. In 2022, for the first time in nearly a century, the U.S. Supreme Court (SCOTUS) limited broad congressional delegation of rulemaking authority to the Environmental Protection Agency (EPA).

SCOTUS' 2022 decision to limit the broad delegation of rulemaking to the EPA, and its 2024 decision to strike down Chevron deference, which was a precedent of judicial deference to agency interpretation of statutes, pointed to a broader trend of limiting of the federal administrative state's authority.

What are the key arguments?
The debate surrounding the nondelegation doctrine centers on line drawing between permissible and impermissible delegation. Opponents of a strict interpretation of the nondelegation doctrine argue that the increasing complexity of society requires Congress to delegate complex regulatory burdens to agencies. Proponents of a strict interpretation of the nondelegation doctrine argue that delegation violates the separation of powers, undermines public accountability, and is unconstitutional.

Reform proposals have been introduced to further the nondelegation doctrine, such as the Regulations from the Executive in Need of Scrutiny (REINS) Act which would require Congressional approval of certain agency rules. Below is a selection of reform proposals in the legislative, executive, and judicial branches.

What's the background?
In the context of the federal government, the doctrine comes from an interpretation of Article I of the United States Constitution and the separation of powers principle, which states that all legislative powers granted by the Constitution are vested in Congress. Under a strict application of the nondelegation doctrine, Congress would not be allowed to let the president, administrative agencies, private corporations, or courts pass laws. Read more below.

Dive deeper
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In addition to the information in this article, the following articles provide a deep dive into the history, application, and arguments for and against the nondelegation doctrine:

Background

Vesting clause and the separation of powers

The nondelegation doctrine comes from an interpretation of Article I of the United States Constitution. The first section of that article states that all legislative powers granted by the Constitution are vested in Congress. According to the nondelegation doctrine, the language of this section bars Congress from giving away any of the legislative powers conferred upon it to other bodies.[5][2] The doctrine is also an expression of separation of powers, which refers to a system of government that divides the powers and functions of government among separate and independent entities. According to the doctrine, keeping the lawmaking power within Congress prevents the president or courts from exercising that authority.[5][6]

Intelligible principle test

The legal test used most often by the Supreme Court to apply the nondelegation doctrine, the intelligible principle test, was established in 1928. In J.W. Hampton Jr. & Co. v. United States (1928), the Supreme Court ruled that when authorizing a government official or agency to regulate or otherwise implement the law, Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." Rather than drawing a hard line against congressional delegation of legislative power, this ruling focused on the degree of discretion Congress entrusted to executive branch decision makers.[2][1]

Major applications of the doctrine by the U.S. Supreme Court

The U.S. Supreme Court has considered cases involving congressional delegations of authority at least since the 1813 case The Aurora v. United States. In that case, the court upheld a case involving contingent legislation. Contingent legislation goes into effect once certain conditions are met. Later, in the 1825 case Wayman v. Southard, the court made a distinction between exclusively legislative powers and other powers that Congress may exercise itself or give to another body. The court held that it is difficult to draw the line between an exercise of lawmaking power and an exercise of discretion by the executive branch.[7][1]

After laying out the intelligible principle test in 1928, the U.S. Supreme Court ruled against Congress and President Franklin D. Roosevelt in two nondelegation cases decided in 1935 involving provisions of the National Industrial Recovery Act. In those cases, the court held that Congress gave the executive branch too much discretion to resolve economic problems related to the Great Depression. In 1936, the court ruled that Congress had inappropriately given its legislative authority to private industry by authorizing some corporations to create industry-wide regulations on prices and wages. These cases established that Congress may not delegate its legislative authority to the executive branch and its agencies or to private persons or entities. They also include the last major cases where the courts overturned legislation on nondelegation doctrine grounds.[5][2]

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Timeline of the nondelegation doctrine

The following timeline identifies a selection of events and court cases that have shaped interpretations of the nondelegation doctrine:

  • 1825: Supreme Court first explores limits of delegation
The United States Supreme Court held in Wayman v. Southard that Congress' delegation of authority to create federal court procedures to the federal courts themselves did not represent an unconstitutional delegation of legislative power. Wayman v. Southard was one of the first cases to explore the limits of congressional delegations of power and solidified the right of Congress to delegate non-legislative powers to other federal entities.[1][8]
  • 1892: Supreme Court states that Congress cannot delegate legislative power to the president
In Field v. Clark, Marshall Field & Company challenged the Tariff Act of 1890, arguing that it unconstitutionally delegated legislative power to the President. The United States Supreme Court said, “That [C]ongress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.” The court ruled unanimously that the tariff was constitutional since it only delegated discretionary power to the President. "What the President was required to do was simply in execution of the act of Congress," stated Justice John Harlan in the opinion. "It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect."[2][7]
  • 1911: Supreme Court states that Congress can entrust regulatory power to other entities
In United States v. Grimaud, the United States Supreme Court said, “Congress might rightfully entrust [to others the power to make regulations just] as an owner may delegate to his principal agent the right to employ subordinates, giving to them a limited discretion.” The court upheld a congressional delegation of authority to the U.S. Department of Agriculture to establish regulations with criminal penalties attached if the penalties were set by Congress.[9]
  • 1928: Supreme Court develops intelligible principle test
In J.W. Hampton Jr. & Company v. United States, the United States Supreme Court held that Congress had not unconstitutionally delegated legislative power to the executive branch. Writing for the court, Chief Justice William Howard Taft developed the intelligible principle test, a guiding principle that the United States Supreme Court continues to reference in determining the constitutionality of congressional delegations of authority. Taft stated that Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform," and concluded that "such legislative action is not a forbidden delegation of legislative power."[10][11]
  • 1935: Supreme Court strikes down legislation on nondelegation grounds for the first time
The United States Supreme Court struck down legislation in violation of the nondelegation doctrine in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan. The court has not invalidated a statute on nondelegation grounds since 1935 as of January 2020.[7][12]
  • 1936: Supreme Court holds that delegation of legislative authority violates due process clause
In Carter v. Carter Coal Company the United States Supreme Court held that Congress had violated the due process clause of the Fifth Amendment by delegating legislative authority in the form of price and wage controls to a private industry group made up of coal producers and miners.[5]
  • 1943: Supreme Court rejects nondelegation challenge in broadcast licensing case
In National Broadcasting Company v. United States, the United States Supreme Court rejected a nondelegation challenge by identifying an intelligent principle in the law authorizing the Federal Communications Commission (FCC) to allocate broadcast licenses in a fair and efficient manner and to grant licenses that serve “the public interest, convenience, and necessity.”[8]
  • 1944: Supreme Court rejects nondelegation challenge in context of criminal sanctions
In Yakus v. United States, the United States Supreme Court rejected a nondelegation challenge by upholding a broad delegation of authority involving criminal sanctions.[8]
  • 1946: Supreme Court states that complex legislation requires delegation
In American Power & Light Company v. SEC, the United States Supreme Court upheld a broad delegation of authority to the Securities and Exchange Commission (SEC), stating that "necessities of modern legislation dealing with complex economic and social problems” require delegation.[8]
  • 1983: Supreme Court states that rulemaking can resemble lawmaking
In INS v. Chadha, the United States Supreme Court said, “To be sure, some administrative agency action—rulemaking, for example—may resemble ‘lawmaking.’”[1]
  • 1983: Law review article examines state-level enforcement of nondelegation doctrine
Administrative law scholars George Bunn, Kathleen Irwin, and F. Kyra Sido published "No Regulation Without Representation: Would Judicial Enforcement of a Stricter Nondelegation Doctrine Limit Administrative Lawmaking?" in the Wisconsin Law Review. The article examined “a thirty-year period where the Illinois Supreme Court vigorously enforced the non-delegation doctrine.”[13]
  • 1989: Justice Scalia questions degree of delegation
In a dissent to Mistretta v. United States, Justice Antonin Scalia wrote, "the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree ... it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."[2]
  • 1993: Minnesota proposes state legislature resolve basic policy questions before delegating authority
“The Minnesota Commission on Reform and Efficiency determined that the biggest cause of delay in rulemaking was broad or vague statutes that amounted to delegating policymaking authority to agencies. To solve the problem, the Commission proposed that the legislature resolve basic policy issues before delegating authority to agencies.”[13]
  • 2001: Justice Thomas suggests Supreme Court reconsider delegation jurisprudence
In Whitman v. American Trucking Associations, Justice Clarence Thomas argued in a concurring opinion that congressional actions that met the intelligible principle test could still violate the nondelegation doctrine. He wrote, "I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than 'legislative.'" Thomas also suggested that the Supreme Court reconsider the entire jurisprudence governing the delegation of powers.[14]
  • 2014: Supreme Court rejects nondelegation challenge; holds that Amtrak is government entity
The nondelegation challenge in Department of Transportation v. Association of American Railroads questioned whether Amtrak was a private entity for purposes of the nondelegation doctrine, echoing the crux of the nondelegation challenge that was upheld in Carter v. Carter Coal Company (1936). Challengers argued that the congressional delegation of authority to Amtrak to formulate “metrics and standards” together with the Federal Railroad Association violated the nondelegation doctrine because Amtrak was a private entity. The United States Supreme Court rejected the challenge and held that Amtrak was governmental entity.[5][15]
  • 2019: Supreme Court rejects nondelegation challenge; upholds delegation of power to attorney general
The U.S. Supreme Court ruled 5-3 in Gundy v. United States that the Sex Offender Registration and Notification Act (SORNA) did not violate the nondelegation doctrine. The court upheld the delegation of power to the attorney general in SORNA, saying that it did not violate the doctrine. Justice Elena Kagan’s plurality opinion noted that the court has only declared delegations of authority unconstitutional twice in its history and that past courts have upheld broader delegations with less guidance from Congress. Justice Samuel Alito, however--who voted to uphold SORNA--wrote a separate opinion stating his willingness to reconsider how the court approaches future nondelegation doctrine challenges, suggesting changes in precedent might still be coming[10][16]
  • 2022: Supreme Court invokes major questions doctrine
In West Virginia v. Environmental Protection Agency, the U.S. Supreme Court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff.[17]

List of court cases relevant to the nondelegation doctrine

This table contains major state and federal court cases related to the nondelegation doctrine:

Cases relevant to the nondelegation doctrine
Case Court Year Impact
United States v. Hudson, 11 U.S. 32 U.S. Supreme Court 1812 Held that the legislature must first make an act a crime, affix a punishment, and declare the court with jurisdiction before a person can be convicted of a crime in federal court.
Cargo of the Brig Aurora v. United States, 11 U.S. 382 U.S. Supreme Court 1813 The court held that contingent legislation does not violate the nondelegation doctrine.
McCulloch v. Maryland, 17 U.S. 316 U.S. Supreme Court 1819 The court upheld the power of Congress to incorporate a bank as an exercise of legislative discretion in the exercise of constitutional powers.
Wayman v. Southard, 23 U.S. 1 U.S. Supreme Court 1825 The first serious effort to define a nondelegation principle by the U.S. Supreme Court. The court held that Congress could not delegate strictly and exclusively legislative powers, but could give away other powers. The court noted the imprecise bounds of the discretion Congress could give other branches.
Cincinnati, Wilmington & Zanesville R.R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 77 Ohio Supreme Court 1852 The court held that a bond law requiring voter approval before going into effect was not a violation of the nondelegation doctrine. The court ruled that the law conferred discretion on the voters as to whether or not to execute the law.
Morrill v. Jones, 106 U.S. 466 U.S. Supreme Court 1882 The court struck down a regulation imposed by the secretary of the treasury saying it went beyond the law.
State ex rel. R.R. & Warehouse Comm’n v. Chicago, Milwaukee & St. Paul R.R. Co., 37 N.W. 782 Minnesota Supreme Court 1888 The court ruled that since the state legislature had the power to regulate railroad charges, it could delegate to a commission the power of setting those charges.
Field v. Clark, 143 U.S. 649 U.S. Supreme Court 1892 The court held that the Tariff Act of 1890 was a constitutional delegation of discretionary power to the president that did not violate the nondelegation doctrine.
United States v. Eaton, 144 U.S. 677 U.S. Supreme Court 1892 The court held that violations of regulations made by the president or by heads of departments under authority granted by Congress do not automatically carry criminal penalties.
Buttfield v. Stranahan, 192 U.S. 470 U.S. Supreme Court 1904 The court held that the power given to the secretary of the treasury to adopt uniform standards for tea importation did not violate the nondelegation doctrine.
United States v. Grimaud, 220 U.S. 506 U.S. Supreme Court 1911 The court upheld Congressional delegation of authority to the Department of Agriculture to establish regulations with criminal penalties attached if the penalties were set by Congress. The court treated the authority to provide general regulations governing the use of forest reservations as non-legislative.
J.W. Hampton Jr. & Company v. United States, 276 U.S. 394 U.S. Supreme Court 1928 The court articulated the intelligible principle test, which the court used to determine the constitutionality of congressional delegations of authority. Later courts adopted the test to analyze potential delegations.
Fed. Radio Comm’n v. Nelson Bros. Bond & Mortg. Co. (Station WIBO), 289 U.S. 266 U.S. Supreme Court 1933 Precedent used by the court later in National Broadcasting Co. (1943).
Panama Refining Co. v. Ryan, 293 U.S. 388 U.S. Supreme Court 1935 The court held that a law governing hot oil violated the nondelegation doctrine. This was the first time the court invalidated a statute on nondelegation grounds.
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 U.S. Supreme Court 1935 The court overturned a fair competition code system as a violation of the nondelegation doctrine. This case was the last time the court invalidated a statute on strictly nondelegation grounds as of January 4, 2019.
Carter v. Carter Coal Company, 298 U.S. 238 U.S. Supreme Court 1936 The court held in part that the Bituminous Coal Conservation Act of 1935 violated the nondelegation doctrine because Congress delegated legislative power to a private industry group.
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 U.S. Supreme Court 1940 The court held that Congress did not violate the nondelegation doctrine in the Bituminous Coal Conservation Act of 1937.
Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126 U.S. Supreme Court 1941 The court held that the increasing complexity of society was such that Congress could not perform its functions if it had to find all the facts that support a defined legislative policy.
National Broadcasting Co., Inc. v. United States, 319 U.S. 190 U.S. Supreme Court 1943 The court upheld broad delegation of power from Congress to the Federal Communications Commission grant broadcast licenses that serve the public interest, convenience, and necessity.
Yakus v. United States, 312 U.S. 414 U.S. Supreme Court 1944 The court held that the Emergency Price Act of 1942 did not violate the nondelegation doctrine because Congress sufficiently regulated the powers of the price administrator.
American Power & Light Co. v. SEC, 329 U.S. 90 U.S. Supreme Court 1946 The court held that § 11(b)(2) of the Public Utility Holding Company Act of 1935 did not violate the nondelegation doctrine because Congress clearly delineated a general policy, the agency to apply it, and the bounds of the delegated authority subject to judicial review.
Lichter v. United States, 334 U.S. 742 U.S. Supreme Court 1948 The court upheld a delegation of authority to determine excessive profits.
Buckley v. Valeo, 424 U.S. 1 U.S. Supreme Court 1976 The court defined an officer of the United States as one exercising significant authority.
Askew v. Cross Key Waterways, 372 So. 2d 913 Florida Supreme Court 1978 The court threw out a broad delegation of authority citing article II, section 3 of the Florida Constitution.
Indus. Union Dept. v. Amer. Petroleum Inst., 448 U.S. 607 U.S. Supreme Court 1980 Justice William Rehnquist wrote a concurring opinion arguing that the delegation of authority in the Occupational Safety and Health Act of 1970 violated the nondelegation doctrine.
People v. Wright, 639 P.2d 267 California Supreme Court 1982 The court upheld a grant of power to the Judicial Council to set sentencing rules.
INS. v. Chadha, 462 U.S. 919 U.S. Supreme Court 1983 The court held that legislative veto provisions were unconstitutional.
Mistretta v. United States, 488 U.S. 361 U.S. Supreme Court 1989 The court applied the intelligible principle test and held that the guidelines in the Sentencing Reform Act of 1984 were sufficient to keep the Sentencing Commission from violating the nondelegation doctrine.
Skinner v. Mid-America Pipeline Co., 490 U.S. 212 U.S. Supreme Court 1989 The court unanimously reversed a district court ruling that held a congressional delegation of taxing power was unconstitutional.
Touby v. United States, 500 U.S. 160 U.S. Supreme Court 1991 The court applied the intelligible principle test to hold that § 201(h) of the Controlled Substances Act did not delegate legislative power to the attorney general unconstitutionally. Held that regulations with criminal sanctions might require more specific congressional guidance.
Freytag v. Commissioner, 501 U.S. 868 U.S. Supreme Court 1991 The court upheld the structure of the United States Tax Court.
B.H. v. State, 645 So. 2d 987 Florida Supreme Court 1994 The court overturned a law allowing a department to define levels of restrictiveness for detention facilities. It held that such a delegation of authority involved matters of crime and required greater scrutiny.
United States v. Lopez, 514 U.S. 549 U.S. Supreme Court 1995 The court held that the Gun-Free School Zones Act of 1990 exceeded Congress' power under the commerce clause.
Department of the Interior v. South Dakota, 519 U.S. 919 U.S. Supreme Court 1996 The U.S. Supreme Court vacated a ruling by the Eighth Circuit Court of Appeals that held that part of the Indian Reorganization Act of 1934 violated the nondelegation doctrine.
Loving v. United States, 517 U.S. 748 U.S. Supreme Court 1996 The court rejected a nondelegation challenge in the context of a death penalty case.
Clinton v. City of New York, 524 U.S. 417 U.S. Supreme Court 1998 The court rejected the structure of the Line Item Veto Act of 1996. Justice Anthony Kennedy wrote in a concurring opinion that such sessions of congressional power violate separation of powers principles even when Congress gives up legislative power voluntarily.
Avatar Development Corp. v. State, 723 So. 2d 199 Florida Supreme Court 1998 The court permitted delegation because of technical considerations.
Am. Trucking Ass’ns v. EPA, 175 F.3d 1027 D.C. Circuit 1999 The court found that the construction of the Clean Air Act used by the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards was an unconstitutional delegation of legislative power
Am. Trucking Ass’ns v. EPA, 195 F.3d 4 D.C. Circuit 1999 The court ruled that the EPA has the authority to extract an intelligible principle from a statute and attempt to apply it before the court can rule whether it violates the nondelegation doctrine.
Whitman v. American Trucking Assns., Inc., 531 U.S. 457 U.S. Supreme Court 2001 A unanimous court ruled that the Constitution vests all its legislative powers in Congress and permits no delegation of those powers, but sustained the sections 108 and 109 of the Clean Air Act.
C & S Wholesale Grocers, Inc. v. City of Westfield Massachusetts Supreme Court 2002 The court rejected a nondelegation challenge that was part of a property tax dispute.
In re Initiative Petition No. 366, 46 P.3d 123 Oklahoma Supreme Court 2002 The court held that provisions within a potential ballot initiative designating English as the state's official language would violate the Oklahoma Constitution's nondelegation doctrine.
Bush v. Schiavo, 885 So. 2d 321 Florida Supreme Court 2004 The court ruled that the law passed to address Theresa Schiavo and others in her position violated the state's nondelegation doctrine.
National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 U.S. Supreme Court 2005 The court ruled that Chevron deference applies even when courts have interpreted a questioned provision differently in the past.
Imhotep-Nguzo Saba Charter School v. Department of Education Florida Fourth District Court of Appeal 2007 The court upheld the authority of local school boards to deny applications for charter schools for good cause.
Massachusetts v. EPA, 549 U.S. 497 U.S. Supreme Court 2007 The court ruled that the EPA could not decline to regulate CO2 emissions as pollution.
United States v. Hinckley, 550 F.3d. 926 Tenth Circuit 2008 Judge Neil Gorsuch wrote a concurring opinion raising nondelegation concerns related to the Sex Offender Registration and Notification Act (SORNA).
United States v. Fuller, 627 F.3d. 499 Second Circuit 2010 Judge Reena Raggi raised nondelegation concerns related to SORNA in a concurring opinion.
National Federation of Independent Business v. Sebelius, 567 U.S. 519 U.S. Supreme Court 2012 The court ruled that the Medicaid provisions of the Patient Protection and Affordable Care Act of 2010 were impermissibly coercive even though the court did not draw a precise line between persuasion and coercion.
Appeal of Erica Blizzard (New Hampshire Department of Safety) New Hampshire Supreme Court 2012 The court upheld a law governing boat operation privileges that faced a nondelegation challenge.
Reynolds v. United States, 565 U.S. 432 U.S. Supreme Court 2012 Justice Antonin Scalia raised nondelegation concerns about SORNA in a dissenting opinion.
United States v. Parks, 698 F.3d. 1 First Circuit 2012 The court ruled that SORNA didn't violate nondelegation doctrine because Congress only delegated to the attorney general the judgment whether the benefit of registering pre-SORNA offenders would be offset by administrative problems.
Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 Sixth Circuit 2013 The court held that greater congressional specificity may be required in criminal contexts.
Southern Alliance for Clean Energy v. Graham, 113 So. 3d 742, 745 Florida Supreme Court 2013 The court ruled that a law giving the Florida Public Service Commission the authority to establish alternative cost recovery mechanisms related to nuclear power plant planning and construction did not violate the nondelegation doctrine.
City of Arlington v. FCC 569 U.S. 290 U.S. Supreme Court 2013 The court ruled that Chevron deference applied to a question over agency jurisdiction. The majority opinion rejected the distinction between jurisdictional and nonjurisdictional interpretations of law.
Dep't of Transp. v. Ass'n of Am. Railroads, 575 U.S. __ U.S. Supreme Court 2015 The court held that Amtrak was a governmental entity for the purposes of determining whether Congress gave legislative power to a private body. Justice Clarence Thomas wrote a concurring opinion attacking the intelligible principle test.
United States v. Nichols, 784 F.3d 666 Tenth Circuit 2015 Judge Neil Gorsuch wrote an opinion emphasizing the need to separate lawmaking and law enforcement functions in the context of criminal law.
United States v. Gundy, 804 F.3d. 140 Second Circuit 2015 The court ruled that Gundy's nondelegation claim was foreclosed by 2010 precedent.
United States Telecom Ass’n v. FCC, 855 F.3d 381 D.C. Circuit 2017 Judge Brett Kavanaugh dissented from a denial of rehearing en banc and articulated the major rules doctrine, which says Congress must explicitly delegate authority for agencies to make major rules.
Lucia v. SEC, 585 U.S. __ U.S. Supreme Court 2018 The court enforced a vague standard to define officers of the United States to include administrative law judges.
Ortiz v. United States, 138 S. Ct. 2165 U.S. Supreme Court 2018 Justice Samuel Alito in dissent argued that the Vesting Clauses impose strict limits on the kinds of institutions that Congress can vest with legislative, executive, and judicial power.
Gundy v. United States U.S. Supreme Court 2019 The court ruled that the U.S. attorney general's authority to issue regulations under the Sex Offender Registration and Notification Act (SORNA) did not violate the nondelegation doctrine.
West Virginia v. Environmental Protection Agency U.S. Supreme Court 2022 The Supreme Court formally applied the major questions doctrine for the first time to limit a broad congressional delegation of authority to the EPA.

Arguments for and against the nondelegation doctine

See also: Taxonomy of arguments about the nondelegation doctrine

Gary Lawson wrote in 2001, "The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study."[18] This section provides information about the main arguments that have been advanced to support or oppose the nondelegation doctrine.

There are four main types of argument against delegation:

There are eight arguments against the traditional nondelegation doctrine and in favor of delegation:

Legislative reform proposals related to the nondelegation doctrine

This section includes the main legislative approaches to addressing challenges related to the nondelegation doctrine.

Have Congress vote on rules

Legislative veto

See also: INS v. Chadha, Legislative veto (administrative state)

This proposal empowers Congress to reverse decisions made by administrative agencies. Common versions of the proposal would allow one house of Congress to invalidate agency actions; however,[19] the U.S. Supreme Court ruled that one-chamber legislative vetoes were unconstitutional in INS v. Chadha (1983). The court ruled that the one-chamber legislative veto was a legislative act that went outside the legislative procedures required by the U.S. Constitution, which include bicameralism and having the president sign legislation into law.[20] In response, proposals like the REINS Act seek to give Congress the power to review agency rules before they go into effect while following the constitutional boundaries articulated by the U.S. Supreme Court in Chadha.[21]


Use REINS Act legislation to undelegate delegated authority

This approach argues that instead of issuing resolutions of disapproval after a rule takes effect, REINS Act legislation could give legislators the preemptive authority to halt the initial enactment of certain regulations:

  • The Regulations from the Executive in Need of Scrutiny Act, also known as the REINS Act, is a legislative proposal that would require congressional approval of certain major agency regulations before those regulations can be implemented. The REINS Act defines major agency regulations as those that have financial impacts on the U.S. economy of $100 million or more, increase consumer prices, or have significant harmful effects on the economy. It is designed as an amendment to the Congressional Review Act (CRA) of 1996, under which Congress has the authority to issue resolutions of disapproval to nullify agency regulations.[22][23]


Force Congress to vote on major changes in regulations

This approach argues that the delegation of legislative authority effectively shields Congress from public accountability. Congress should, therefore, have to vote on major administrative and regulatory rules to lift that shield. A version of this approach is expanded upon below:

  • David Schoenbrod wrote that “The regulation trick lets current members of Congress and Presidents shift blame to federal agencies for the burdens required to vindicate rights to regulatory protection and the failures to deliver the promised regulatory protection. Implementing the proposal by James Landis, the New Deal expert, as fleshed out by then judge Stephen Breyer, the Honest Deal Act would require members of Congress to cast roll call votes on major regulatory changes, whether to strengthen or weaken regulation."[24]

Have Congress pass rules statutes instead of goals statutes

This approach argues that the nature of the statute being passed matters; rules statutes require more specificity from lawmakers whereas goals statutes delegate greater authority to agencies to interpret legislative intent. An example of this is expanded on below:

  • David Schoenbrod wrote that "A rules statute approach to air pollution could, for example, limit the emissions from cars per mile traveled, limit the emissions from power plants per BTU of energy produced, or tax the quantity of emissions from particular sources. Goals statutes, in contrast, leave selection of the controls on conduct to those who apply the statute. Some examples are authorizing an agency to limit emissions on the basis of the "public interest," the "protection of public health," or "an efficient consideration of health, welfare, and the costs of control"; these terms do not state whose conduct must be curbed or in what way.”[25]
"Even a rules statute that leaves room for interpretation requires the legislature to make its intentions about the treatment of most situations reasonably clear, while goals statutes allow the legislature to stay on an abstract plane where there may be no formal statement as to the disposition of any situation."[25]

Force Congress to revisit delegations of power to agencies

Some critics of delegation, like David Schoenbrod, argue that delegation allows unelected agency employees to make significant policy decisions.[26] This reform proposal seeks to address that concern. It would use sunset provisions to force Congress to review laws that delegate authority to agencies. Sunset provisions set expiration dates for laws and require Congress to vote to keep those laws in place beyond that time. To make sure agencies are following congressional instructions, Congress could review expiring laws and compare their requirements with related regulations.[27]

This approach would not restore a strict version of the nondelegation doctrine. Instead, these proposals try to make agencies follow the intent of Congress through time as the agencies create regulations based on delegated authority.

An example of this approach follows below:

  • Law professors Jonathan Adler and Christopher Walker wrote, "[B]road congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that were wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction."[27]
"To address this distinct, temporal problem of delegation, we suggest that Congress revive the practice of regular reauthorization of statutes that govern federal regulatory action. In some circumstances, this will require Congress to consider adding reauthorization incentives, such as sun-setting provisions. In other regulatory contexts, Congress may well decide the costs of mandatory reauthorization outweigh the benefits. Nevertheless, we argue that Congress should more regularly use this longstanding legislative tool to mitigate the democratic deficits that accompany broad delegations of lawmaking authority to federal agencies and spur more regular legislative engagement with federal regulatory policy. A return to reauthorization would also strengthen the partnership between Congress and the regulatory state."[27]

Create an office within Congress to review regulations

This approach would establish a Congressional Regulation Office (CRO) in order to provide members of Congress with expert analysis of regulations produced by the administrative state.[28] With access to an internal source of information, proponents of the idea argue that Congress could understand what various agencies were doing with delegated legislative authority and exercise more control.[28]

  • Philip Wallach and Kevin Kosar argued in National Affairs that a CRO would accomplish the following purpose, "[A] new Congressional Regulation Office, or CRO, would offer the most direct route to allow Congress to compete in the regulatory arena, as it has not done for many years. By no means would the CRO make legislators the equals of agency officials in terms of specialized knowledge; elected officials will remain generalists trying to understand the work of specialists, so it will always be an asymmetric relationship. But right now, Congress has little chance of even being able to sort out which criticisms of the administrative state's outputs are worth crediting. This leaves two predominant orientations: blind trust and blind anger, neither of which is likely to sway agencies that view Congress mainly as a minor chronic annoyance."[28]
"To have the wherewithal to more constructively steer agencies in their fulfillment of statutory duties and to rewrite legislation when necessary, Congress needs an internal office devoted to regulatory policy. The CRO would serve as a Madisonian structural response to the profound power imbalance between the first and second branches."[28]

Have agencies review programs created and administered under delegated authority

This approach does not restore the nondelegation doctrine, but it would require agencies to review major rules to see how effective they are in practice. Such a measure would be a way to hold agencies accountable to Congress for the exercise of delegated authority. An example of legislation with that requirement follows below:

  • Senate Bill 1420, The SMART Act of 2019, would require agencies to publish ideas about how to measure the anticipated benefits of new major rules, including how to collect the necessary data to conduct such a review.[29] Senators Kyrsten Sinema (D-Ariz.) and James Lankford (R-Okla.) introduced the bill on May 13, 2019.[29]
The act instructs agencies to perform cost-benefit reviews of major rules to determine whether they are accomplishing their objectives, are no longer necessary, or need to be improved.[29] It follows other federal standards and defines major rules as those that have or are likely to have the following results:[29]
  • An annual effect on the economy of $100 million or more
  • A major increase in costs or prices for consumers, individual industries, government agencies, or geographic regions
  • Significant effects on competition, employment, investment, productivity, innovation, health, safety, the environment, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic and export markets
The provisions of the SMART act apply to rules that meet those criteria as determined by the administrator of the Office of Information and Regulatory Affairs (OIRA).[29] OIRA is an office within the Office of Management and Budget (OMB) that handles regulatory review, information collection requests, and oversight of government statistics and privacy policies. The act exempts guidance documents, which include interpretive rules, policy statements, and agency rules of organization, from its review requirements.[29]

Create dedicated state legislative committees to review new agency rules

This approach would not require state legislatures to comply with a nondelegation doctrine, but it would create special committees within state legislatures to monitor how administrative agencies use delegated rulemaking authority. Called Joint Committees of Administrative Rules (JCARs), these bodies would review proposed rules before they go into effect and have the power to block them.

  • The American Legislative Exchange Council (ALEC) included provisions for establishing JCARs in a model state Administrative Procedures Act published in 2018. New administrative agency rules would only go into effect if the JCAR decided not to void them. Members of the JCARs would come from both houses of the state legislatures.[30]
The ALEC proposal would limit JCARs, only allowing them to void new agency rules for the following six reasons:[30]
  • Lack of statutory authority
  • An emergency relating to public health, safety, or welfare
  • Failure to comply with express legislative intent or to substantially meet procedural requirements
  • Conflict with state law
  • Arbitrariness and capriciousness
  • Failure to make a written record of its consideration of public comments

Executive branch reform proposals related to the nondelegation doctrine

This section includes the main executive branch approaches to addressing challenges related to the nondelegation doctrine.

Presidents should send major rules to Congress for a vote before implementation

This approach would have the president enforce the nondelegation doctrine by sending all major rules to Congress for a vote before allowing agencies to publish them in the Federal Register. An example of this approach follows below:

  • Hudson Institute distinguished fellow Christopher DeMuth argued at a policy conference that presidents could pressure Congress to limit delegation by publicly stating that any major rule drafted by an agency would not go into effect until Congress voted to approve the rule.[31] Such a presidential declaration would effectively block new rules unless they received an affirmative vote in Congress.[31]

Make sure agencies follow Congressional Review Act procedures when issuing guidance

See also: Guidance (administrative state)

This approach would not eliminate delegation of legislative power to agencies, but seeks to use presidential power to oversee how agencies use delegated power.

The memo outlined the broad scope of the CRA for rules coming out of the administrative state. Under Clinton-era Executive Order 12866, agencies have to submit any significant regulatory actions to OIRA for review.[32] However, agencies do not submit all CRA-covered actions to OIRA.[33] In addition to notice-and-comment rules, the April 2019 OMB memo said that agencies have to submit statements of policy and interpretive rules to OIRA and Congress.[32] That instruction included guidance documents, which agencies often fail to submit for CRA review.[33]

Apply a strict nondelegation doctrine to agency cost-benefit analyses

This approach calls for a strict application of the nondelegation doctrine to agency cost-benefit analyses in order to determine whether agencies have exercised legislative authority beyond objective statutory interpretation.

  • Professor Victor Flatt argued that, “If it is true, as some claim, that there is empirical evidence of a bias of benefit-cost application to routinely overprice agency actions implementing statutes to protect human health and the environment, then a court should be able to take that fact as evidence of misusing of the benefit-cost analysis to make a policy decision not legitimately given it by Congress and thus engaging in the exercise of legislative power in violation of the non-delegation doctrine.”
“The combination of these factors would seem, at best, to create skepticism that our courts could start applying the non-delegation doctrine to limit the use of benefit-cost analysis. However, there are positive signs that this could work. First, the application of benefit-cost analysis is not in any particular agency's area of expertise, and it should not be given deference because of this issue, which itself is based on a deference to supposed congressional preference. In determining whether evidentiary numbers are accurately used, a court has as much expertise as an agency and is called on to render such judgments routinely.”
“A skepticism to benefit-cost analysis that demonstrates bias or less than best practices would allow a court to see when an agency is going beyond objective application of a statute and into the arena of legislative policy, in violation of the nondelegation doctrine. Even if a court does not conceptualize the control of agency discretion in the APA as another version of non-delegation, such bias in a particular direction would still indicate acting outside of agency discretion contrary to law.”
“There is some hope for benefit-cost analysis as a tool if it is used in a precise way. The criticism of benefit-cost analysis being manipulated and inadequate for certain kinds of analyses is correct. What is striking is that agencies should not be engaged in this kind of manipulation of policy making in the first place. It is a violation of the separation of powers doctrine in our Constitution, and this determination could be made by a rigorous application of the non-delegation doctrine to such agency action. All it requires is for our courts to recognize the proper standard that governs what an agency can and should be engaged in when applying benefit-cost analysis and then a willingness to examine so-called "objective" evidence for accuracy. Doing this might go a good way in curbing abuses of benefit-cost analysis and improving its use in practice.”[34]

Develop and enforce a nondelegation doctrine for the executive branch

This approach argues that a nondelegation doctrine for the executive branch needs further development but might already exist in Article II—specifically the Vesting Clause—and place limits on executive branch delegations of power, not just those of Congress. A version of this approach is expanded on below:

  • Dina Mishra writes, “[L]imits to the delegation of executive power to private administrators of law might exist in Article II. Those limits—in particular, their scope and the interplay among them—have been left underdeveloped by existing scholarship." "
“Drawing force from the Vesting Clause, and informed primarily by the Take Care and Appointments Clauses, the doctrine might involve two inquiries: (1) Does the delegated task implicate “[t]he executive Power” that the Constitution vests in the President—a power, in the words of the Take Care Clause, to “take Care that the Laws be faithfully executed”? (2) If so, is the delegee a proper subordinate to the President, so that his performance of such executive tasks does not divest the President of “[t]he executive Power”?"
"[A] rigid unitary executive approach—which demands complete presidential control over every task connected with the execution of law—is not the only coherent way to understand Article II’s Vesting Clause to restrict delegations of executive power. Under the Supreme Court’s Article II precedent, the doctrine’s inquiries might depend instead on the nature of the task and the form, degree, and directness of presidential oversight or control available over the task or over the one performing it, flexibly allowing for certain trade-offs among those control mechanisms, so long as the President remains accountable for the execution of law."[35]

Judicial reform proposals related to the nondelegation doctrine

This section includes the main judicial approaches to addressing challenges related to the nondelegation doctrine.

Develop a better line-drawing test

See also: Line-drawing arguments concerning the nondelegation doctrine

One of the main areas of inquiry and disagreement concerning to the nondelegation doctrine is how to draw the line between a legislative act that engages in permissible delegation versus one that trips over the line into impermissible delegation. This approach argues that develop better ways of distinguishing between legislative statutes that confer permissible powers to an agency through delegations of authority and those that violate the nondelegation doctrine through impermissible delegations will make enforcing the nondelegation doctrine easier. There are several versions of this approach expanded upon below:

Claim: a good line-drawing test can create more consistent outcomes when enforcing nondelegation

  • Scholar and attorney A.J. Kritikos argued in a law review article that “Developing a good test is the first step in achieving consistent outcomes for delegation challenges. ... Florida has developed a fairly stable non-delegation jurisprudence because its test is harder to manipulate than the intelligible principle test. While the Florida Supreme Court’s test is functionally equivalent to the Marshall test, Florida courts have more fully imbued the test with content, and thus, the two tests should be merged to provide a fuller template for contemporary federal courts. Regardless of how one characterizes the test used in Florida, that state’s jurisprudence provides substantial evidence that courts can enforce the nondelegation doctrine reasonably consistently – with no subsequent parade of horribles – thus rebutting the U.S. Supreme Court’s primary reason for not enforcing it.”[36]

Claim: use of an elastic Marshall test can lead to consistent application of the nondelegation doctrine

  • Kritikos argued that “Florida, in particular, has been able to consistently apply the non-delegation doctrine by asking whether a given statute makes the fundamental and primary policy decision, which is similar to the Marshall test’s inquiry.” “Florida courts have adopted a sliding scale approach in their non-delegation jurisprudence, so where a statute deals with very technical issues, like cost-recovery mechanisms for nuclear power plants, the courts give the legislature more leeway to delegate broadly. Furthermore, the test can become more stringent in some contexts, such as when a legislature delegates crime making authority to an executive agency. The Marshall test, as applied and fleshed out in Florida, thus proves to be rather elastic.”[36]

Have SCOTUS apply the specificity canon to narrow broad delegations

John Manning argued that, “Although its rationale is rarely explained, the canon preferring the specific over the general furthers nondelegation interests, even though it displaces statutory authority that an agency or court might otherwise enjoy. The central aim of the nondelegation doctrine is to promote specific rather than general legislative policymaking-that is, to induce Congress to filter more precise policies through the process of bicameralism and presentment rather than leaving such policies to be elaborated by agencies or courts outside the legislative process. Detailed legislation is more likely to reflect the results of a specific choice or compromise. Permitting an agency to rely on general authority to disrupt the balance struck by a more specific statute may therefore undermine a precise outcome reached through bicameralism and presentment.”[37]

Let courts rebuild nondelegation doctrine piece by piece

  • David Schoenbrod wrote that “City of Boerne v. Flores, striking the Religious Freedom Restoration Act of 1993, and Morrison v. United States, striking the Violence Against Women Act, held that statutes passed pursuant to section 5 of the Fourteenth Amendment must be aimed at implementing the rights in the Fourteenth Amendment, not supplementing them. They left Congress free to regulate in ways colorably necessary to enforce those rights. New York v. United States and Printz v. United States held that Congress may not require state legislatures to legislate of state executive branch officials to execute federal law. [...] Although these cases symbolize federalism rather than realize it, they are nonetheless important to those who place a high value on it. They keep alive the claim that our national government is one of limited powers. [...] As with federalism, the Court has also taken baby steps in the delegation context. It has kept alive the idea that Congress should not delegate its legislative powers not only by saying so in cases such as Loving and Clinton v. City of New York, but also by giving the idea operational meaning in some of the cases discussed in the previous section. These decisions are all baby steps because they are all framed in terms that do not commit the Court to stopping Congress from delegating to agencies.”[38]

Apply the nondelegation doctrine on a case-by-case basis

This approach argues that there is no need for a sweeping nondelegation doctrine. Instead, the doctrine can be reformulated to be used as needed on a case-by-case basis.

Claim: a case-by-case approach would allow statutory ambiguity to be reviewed as implicit delegations

  • Ilan Wurman argued that, "there is no need for such a powerful, facial doctrine. Nondelegation can be refashioned to be as-applied. An as-applied nondelegation doctrine would work by treating statutory ambiguities, just as Chevron does, as implicit delegations—each of which can be independently assessed for a nondelegation violation.
“The implications of an as-applied nondelegation doctrine are numerous and highly attractive. It would replace the major questions doctrine, which the literature has rightly rejected, with a rigorous and coherent theory. It would better serve nondelegation interests by dramatically reducing any adverse consequences from finding a violation of the nondelegation doctrine.[39]

Nondelegation doctrine in the states

The three major categories of delegation authority in the states

Legislative delegation of authority varies by law and in practice by state. According to the National Conference of State Legislatures, states can generally be divided into the following three types:[40]

  • Strict standards and safeguards: "States in this category permit “delegation of legislative power only if the statute delegating the power provides definite standards or procedures” to which the recipient must adhere."
  • Loose standards and safeguards: "States in this category view delegation as acceptable “if the delegating statute includes a general legislative statement of policy or a general rule to guide the recipient in exercising the delegated power.”
  • Procedural safeguards: "States in this group “find delegations of legislative power to be acceptable so long as recipients of the power have adequate procedural safeguards in place."

Noteworthy delegation cases in the states

The following is a list of noteworthy court cases in the states involving delegation questions:[41]

Alaska

  • Alaska v. A.L.I.V.E. Voluntary, 606 P.2d 769 (1980)

California

  • California Radioactive Materials v. DHS, 15 Cal. App. 4th 841, 19 Cal. Rptr. 2d 357 (1993)

Colorado

  • Partridge v. Colorado, 895 P.2d 1183 (Colo. 1995)

Florida

  • Florida v. Carswell, 557 So.2d 183 (Fla. 1990)
  • Ameraquatic v. Florida, 651 So.2d 114 (Fla. 1995)

Hawaii

  • Hawaii v. Christie, 70 Haw. 158, 766 P.2d 1198 (1988)

Illinois

  • Gillett v. Logan County, 67 Ill. 256 (1873)

Kansas

  • Kansas ex rel. Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976)

Kentucky

  • LRC v. Brown, 664 S.W.2d 907 (1984)

Louisiana

  • Louisiana v. Broom, 439 So.2d 357 (La. 1983)

Maryland

  • Opinion of Justices, 49 Md. App. 300, 431 A.2d 738 (1981)

Massachusetts

  • Attorney General v. Brissenden, 271 Mass. 172, 171 N.E. 82 (1930)

Mississippi

  • Dye v. Mississippi, 507 So.2d 332 (Miss. 1987)

Missouri

  • Missouri ex inf. Danforth v. Merrell, 530 S.W.2d 209 (Mo. 1975)

New York

  • Bd. Of Cmm’rs of Excise of Delaware County v. Sackrider, 8 Tiffany 154, 35 N.Y. 154 (1866)
  • In re Leach, 115 Misc. 660, 190 N.Y.S. 135 (1921)

Oklahoma

  • Ralls v. Wyand, 40 Okla. 323, 138 P. 158 (1914)

Pennsylvania

  • Pennsylvania Medical Providers Ass’n. v. Foster, 582 A.2d 888 (Pa. Cmmw. Ct. 1990)

Tennessee

  • McFaddin v. Jackson, 738 S.W.2d 176 (Tenn. 1987)

Utah

  • Utah v. Green, 793 P.2d 912 (Utah 1990)

West Virginia

  • Dancer v. Mannington, 50 W. Va. 322, 40 S.E. 475 (1901)
  • Common Cause of W. Va. V. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991)

Wisconsin

  • Wisconsin ex rel. Arnold v. City of Milwaukee, 157 Wis. 505, 147 N.W. 50 (1914)
  • State ex. rel. Wisconsin Inspection Bureau v. Whitman, 196 Wis. 472, 505-06 (1928)
  • Watchmaking Examining Board v. Husar, 49 Wis. 2d 526, 536 (1971)

See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 1.3 1.4 Legal Information Institute, "Nondelegation Doctrine," accessed September 5, 2017 Cite error: Invalid <ref> tag; name "cornell" defined multiple times with different content Cite error: Invalid <ref> tag; name "cornell" defined multiple times with different content Cite error: Invalid <ref> tag; name "cornell" defined multiple times with different content
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 FindLaw, "Whitman v. American Trucking Assns., Inc.," February 27, 2001 Cite error: Invalid <ref> tag; name "findlaw" defined multiple times with different content Cite error: Invalid <ref> tag; name "findlaw" defined multiple times with different content
  3. ↑ Justia, "Delegation and Individual Liberties," accessed September 10, 2017
  4. ↑ Cornell Law School, "Nondelegation doctrine," accessed July 29, 2023
  5. ↑ 5.0 5.1 5.2 5.3 5.4 SCOTUSblog, "SCOTUS for law students: Non-delegation doctrine returns after long hiatus," December 4, 2014
  6. ↑ Legal Information Institute, "Separation of powers," accessed September 20, 2017
  7. ↑ 7.0 7.1 7.2 Virginia Law Review, "Delegation and Original Meaning," October 27, 2001
  8. ↑ 8.0 8.1 8.2 8.3 Virginia Law Review, "Delegation and Original Meaning," 2002
  9. ↑ Harvard Journal of Law and Public Policy, "Deconstructing Nondelegation," 2010
  10. ↑ 10.0 10.1 Oyez, "J.W. Hampton, Jr. & Company v. United States," accessed October 30, 2017 Cite error: Invalid <ref> tag; name "oyez" defined multiple times with different content
  11. ↑ Rowman & Littlefield Publishers, Inc., Summaries of Leading Cases on the Constitution, 50th Anniversary Edition, 2004
  12. ↑ Slate, "The Supreme Court May Revive a Legal Theory Last Used to Strike Down New Deal Laws," March 5, 2018
  13. ↑ 13.0 13.1 Missouri Law Review, "Resuscitating the Non-Delegation Doctrine," 2017
  14. ↑ FindLaw, Whitman v. American Trucking Associations, Inc., accessed November 14, 2017
  15. ↑ Oyez, "U.S. Department of Transportation v. Association of American Railroads," accessed November 26, 2018
  16. ↑ Supreme Court of the United States, "Gundy v. United States," June 20, 2019
  17. ↑ Reuters, "U.S. Supreme Court just gave federal agencies a big reason to worry," June 30, 2022
  18. ↑ Cite error: Invalid <ref> tag; no text was provided for refs named valr
  19. ↑ Legal Information Institute, "Legislative Veto," accessed June 12, 2019
  20. ↑ Legal Information Institute, "INS v. Chadha," accessed June 12, 2019
  21. ↑ R Street, "Losing hold of the REINS: How Republicans’ attempt to cut back on regulations has impeded Congress’s ability to assert itself," Philip Wallach, May 2, 2019
  22. ↑ Congressional Research Service, "Disapproval of Regulations by Congress:Procedure Under the Congressional Review Act," October 10, 2001
  23. ↑ GovTrack, "H.R. 26: Regulations from the Executive in Need of Scrutiny Act of 2017—Overview," accessed July 14, 2017
  24. ↑ Harvard Journal of Law and Public Policy," “How to Salvage Article I: The Crumbling Foundation of Our Republic”, accessed January 25, 2019
  25. ↑ 25.0 25.1 New York Law School, "Goals Statutes or Rules Statutes: The Case of the Clean Air Act," 1982
  26. ↑ David Schoenbrod, "Delegation and Democracy: A Reply to My Critics; Symposium - The Phoenix Rises again: The Nondelegation Doctrine from Constitutional and Policy Perspectives: Democracy and Delegation", 20 CARDOZO L. REV. 731, 732 (1999)
  27. ↑ 27.0 27.1 27.2 C. Boyden Gray Center for the Study of the Administrative State, "Delegation and Time," Jonathan H. Adler and Christopher J. Walker, CSAS Working Paper 19-14, May 2, 2019
  28. ↑ 28.0 28.1 28.2 28.3 National Affairs, The Case for a Congressional Regulation Office," Fall 2016, accessed May 31, 2019
  29. ↑ 29.0 29.1 29.2 29.3 29.4 29.5 Congress.gov, "S.1420 - A bill to amend title 5, United States Code, to improve the effectiveness of major rules in accomplishing their regulatory objectives by promoting retrospective review, and for other purposes," accessed May 20, 2019
  30. ↑ 30.0 30.1 ALEC, "Administrative Procedures Act," accessed September 15, 2020
  31. ↑ 31.0 31.1 C. Boyden Gray Center for the Study of the Administrative State, "Panel 3: Rediscovering Congress's Institutional 'Ambition'," May 2, 2019
  32. ↑ 32.0 32.1 32.2 32.3 Office of Management and Budget, "Memorandum for the Heads of Executive Departments and Agencies," April 11, 2019
  33. ↑ 33.0 33.1 The Hill, "How independent are government agencies? OMB's move on 'major' rules may tell us," Bridget C.E. Dooling, April 13, 2019
  34. ↑ William and Mary Bill of Rights Journal, "The ‘Benefits’ of Non-Delegation: Using the Non-Delegation Doctrine to Bring More Rigor to Benefit-Cost Analysis," 2007
  35. ↑ Vanderbilt Law Review, "An Executive-Power Non-Delegation Doctrine for the Private Administration of Federal Law," November 23, 2015
  36. ↑ 36.0 36.1 Resuscitating the Non-Delegation Doctrine: A Compromise and an Experiment, "Missouri Law Review," Spring 2017
  37. ↑ “The Nondelegation Doctrine as a Canon of Avoidance”, "Supreme Court Review," 2000
  38. ↑ New York Law School, "Politics and the Principle That Elected Legislators Should Make the Laws," 2003
  39. ↑ Texas Law Review, "As-Applied Nondelegation," accessed January 25, 2019
  40. ↑ National Conference of State Legislatures," Separation of Powers—Delegation of Legislative Power," accessed November 27, 2018
  41. ↑ National Conference of State Legislatures, "Separation of Powers—Delegation of Legislative Power," accessed January 7, 2019
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