Taxonomy of arguments about the nondelegation doctrine
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This page contains the main arguments related to the nondelegation doctrine and the legislative control of the administrative state.
The appropriate scope of congressional delegation in the administrative state is contested, with debates centering on constitutional limits, separation of powers, and the need for flexibility in governance. These debates are commonly framed around three contexts: arguments in favor of the nondelegation doctrine and against delegation, arguments against the nondelegation doctrine and in favor of delegation, and line-drawing arguments over what constitutes a permissible versus impermissible delegation of authority.
Arguments in favor of the nondelegation doctrine, and against delegation
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Delegation violates the separation of powers
- Claim: the three governmental powers are distinct, and should be treated that way
- Claim: It was the goal of the framers to restrain governmental abuse and promote liberty through a robust nondelegation doctrine
2. Argument: Delegation undermines public accountability
3. Argument: Delegation is wrong because it is unconstitutional
- Claim: It is forbidden by the Vesting Clause
- Claim: Nondelegation is a universally recognized principle
4. Argument: Delegation violates social compact theory
Arguments against the nondelegation doctrine, and in favor of delegation
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: The Constitution does not explicitly forbid delegating legislative power
2. Argument: Rulemaking is not the same as lawmaking
3. Argument: U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds
4. Argument: Agency law rules permit delegation
5. Argument: Increasing complexity of society requires Congress to delegate to do its job
- Claim: Agency rulemaking is required to achieve Americans’ goals
- Claim: The American people want an active federal government
- Claim: Delegation makes the administrative state constitutionally mandatory
- Claim: Congress cannot effectively issue major rules
7. Argument: Advocates of the nondelegation doctrine really just oppose expansive federal regulations
- Claim: Statutes giving open-ended authority provide for the exercise of executive or judicial power
- Claim: Legislative power refers to the authority to cast a vote in Congress and not the authority to make law
Line-drawing arguments concerning the nondelegation doctrine
- Click the arrow (▼) in the list below to see claims under each argument.
1. Argument: Defining legislative authority
- Claim: Legislative authority is the power to fashion legally binding rules
- Claim: Legislative authority is the power to vote in Congress
- Claim: Legislative authority is the power to make laws
2. Argument: Permissible vs. impermissible delegations
- Claim: Delegation lines drawn by the United States Supreme Court
- Claim: Delegation lines drawn by the U.S. Constitution
- Claim: Contingent legislation: identifying the line between implementation and regulation
- Claim: Rules vs. goals statutes: demarcating permissible and impermissible delegations
