Day: November 3, 2025

If one theme unites the Roberts Court’s work in administrative law, it is a counter-reformation that recenters the Constitution’s basic architecture for the administrative state. Congress is to legislate; the president and his subordinates are to execute within a hierarchical, accountable executive; and courts are to exercise independent judgment in interpreting the laws. That settlement, grounded in the Constitution’s Vesting Clauses, animates a series of linked doctrines returning power to the institutions to which the Court believes the Constitution originally entrusted it.

The Roberts Court’s vision for the separation of powers points toward a stricter nondelegation doctrine. Delegation is Congress’s practice of permitting agencies to regulate conduct under broad authorizations that allow the executive substantial policy choice. These delegations have included authority to regulate in the “public interest” without further defining that term or directions to an agency to pursue an objective stated at a high level of generality, such as promoting public health, without indicating how much harm is consistent with protecting the public health. Such broad delegation threatens to make the executive the lawmaker by giving over to that branch the essential policy choices the Constitution entrusts to Congress.

The Supreme Court’s only current limitation on delegation is that Congress must have articulated an “intelligible principle.” And it has applied this test so leniently that it has never struck down a delegation since the New Deal. The “intelligible principle” test now plays much the same role for congressional delegations that rational‑basis review plays for state legislation—a toothless screen that projects oversight while failing to enforce constitutional limits.

The Framers recognized that the legislative power was the most important of all the powers delegated in the Constitution, because it was the only federal authority that could directly affect their domestic liberty. Legislative power—prescribing rules that bind private conduct—belongs only to Congress, and for good reasons. That assignment channels lawmaking through a deliberative, laborious, publicly accountable process. Justice Neil Gorsuch’s dissent in Gundy v. United States articulates this structure crisply: Congress must make the policy decisions; the executive may “fill up the details” or find facts that trigger rules Congress has created. That is the Constitution’s path to stable rules, fair notice, and political accountability.

While I cannot fully defend the originalist case for limiting the delegation doctrine here, my frequent co-author, Michael Rappaport, does so in “A Two-Tiered and Categorical Approach to the Nondelegation Doctrine,” proposing a two-tier framework. For domestic regulation of private rights—most of the stuff of administrative law—he proposes a categorical bar on delegating policymaking discretion. In contrast, he proposes a more lenient standard where history and structure counsel executive flexibility, as in appropriations, foreign and military affairs, and territorial governance. He grounds the strict rule for domestic regulatory affairs in text, history, and structure—especially the private/public rights distinction and James Madison’s insistence that laws provide details, definitions, and rules. The executive in the strict tier is limited to genuine interpretation, fact-finding, and application. On this view, the current doctrine abdicates Congress’s duty precisely where liberty most requires legislative judgment.

Nevertheless, the Roberts Court has made less progress for its basic vision on delegation than in other separation-of-powers domains. That is so even though, in Gundy v. United States, three justices—Chief Justice Roberts and Justices Thomas and Gorsuch—favored tightening the doctrine, and a fourth, Justice Alito, concurred in the judgment while signaling openness to reconsideration. A plurality upheld the statute only because Justice Kavanaugh did not participate and Justice Barrett had not yet joined the Court.

For instance, last term in FCC v. Consumers Research, the Court reaffirmed the intelligible principle test with only Justices Thomas and Gorsuch dissenting. In the opinion for the Court, Justice Elena Kagan reasoned that Congress provided a clear, intelligible principle in §254 of the Act, directing the FCC to promote universal service through specific goals such as equitable contributions, affordability, and access.

What are the obstacles to the reinvigoration of a constitutional non-delegation doctrine, and how might we surmount them?

Reliance

The principal problem is that revising the delegation doctrine would implicate vast reliance interests and generations of precedent in a way that could create a regulatory vacuum. The “intelligible principle” line has long permitted capacious grants that agencies have used to build the basic architecture of federal regulation. Overruling that settlement would endanger a large number of administrative delegations in environmental, consumer protection, and other areas of regulatory law.

The fact is that modern government is administrative government, and delegation has been its lifeblood. Under the authority of these delegations, the federal government has issued hundreds of thousands of pages of regulations. In the recent case of FCC v. Consumer Research, for instance, the Court raised concerns about past delegations even when refusing to overturn the application of the intelligible principle test to a much narrower class of legislation that delegates taxing power to agencies.

In an analogous situation, Judge Robert Bork dismissed suggestions of overruling modern commerce clause doctrine as an invitation to chaos, even as he doubted these precedents as an original matter. The Court has largely left that jurisprudence intact, trimming at the margins by holding that Congress may not directly regulate non-economic activity (United States v. Lopez) or compel private parties to enter commerce as a predicate to regulation (NFIB v. Sebelius). These decisions act more as symbols—signaling the Court’s power is not plenary—while declining to interfere with any substantial regulation in the United States code.

The Court’s revival of the classical structure of the executive and judicial power does not create the same danger of overturning legal frameworks that have elicited substantial reliance in statutes enacted under the Commerce Clause and in delegations administered by the executive. In reasserting the president’s appointments and removal authority and a hierarchical appointments structure within the executive branch, the Roberts Court has reordered the executive’s internal chain of command rather than unsettling the external substance of federal regulation. For instance, none of the decisions requiring that principal officers have greater control over their inferiors struck down any substantive regulation.

To be sure, decisions like Seila Law v. CFPB and Collins v. Yellen, which permit presidential removal of agency heads, are more politically controversial. Nevertheless, they also do not change substantive regulation, as the court has consistently severed the offensive removal provisions from the rest of the regulatory statute. Moreover, while these blows against agency independence infuriate many professors in the legal academy, those outside the professoriate and the beltway hardly notice the change. For good reason, as much literature suggests, so-called independent agencies do not yield different results from those over which the president exercises direct control.

The Federal Reserve—the one agency about whose independence the public may care—is the exception that proves the rule. There, the Supreme Court in Trump v. Wilcox has already suggested a distinction to preserve its independence, stating that ”the Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States“

Major Questions

Another obstacle to fundamentally restructuring delegation is a doctrinal innovation of the Roberts Court itself. It has already applied a “major questions” doctrine that achieves important goals of a tightened delegation doctrine—greater congressional accountability and reduced discretion for agencies—without disturbing long-established regulations issued under broad delegations.

The “major-questions” (better called the “major-powers”) doctrine operates as a shadow substitute for a full-blown revival of non-delegation. The doctrine functions as a clear-statement rule, requiring Congress to “speak clearly” before assigning agencies authority to decide matters of vast economic and political significance. By demanding clarity on delegation, the Court nudges the legislature to make major policy choices while leaving the underlying statutes in place. That structure implements the constitutional separation of powers indirectly, precisely because layers of precedent preclude a revival of the direct enforcement of the originalist non-delegation doctrine. As Justice Gorsuch memorably put it in Gundy, when one doctrine cannot perform its intended work, “hydraulic pressures” shift the task to others; here, the major-powers doctrine carries much of the load that non-delegation would otherwise bear.

Crucially, this shadow doctrine achieves many of non-delegation’s objectives without inviting the chaos that would follow from striking down swaths of the US Code or destabilizing entrenched regulatory regimes. In several major-questions cases, the Court has focused on novelty, prescribing skepticism of any agency claim to have discovered “unheralded” power in an existing statute. Thus, the doctrine screens for new, abrupt expansions of authority rather than retroactively invalidating settled programs. Thus, the older precedent of Utility Air expressed skepticism when an agency discovers in an old statute the power to regulate “a significant portion of the American economy.” Alabama Association of Realtors v. OSHA and NFIB v. OSHA pressed the same point: eviction moratoria under a rarely used 1944 provision and a nationwide vaccine mandate untethered to workplace hazards were both “novel” claims of “vast” significance requiring unmistakable congressional authorization. West Virginia v. EPA then consolidated the doctrine, insisting that a mere “plausible” reading of “best system of emission reduction” could not support a new, grid-wide generation shifting absent a clear statement from Congress.

Moreover, because the major-powers rule leaves the statute intact and simply remands high-salience choices to Congress, the political branches can ratify or revise delegations prospectively; the reliance interests that a revived non-delegation doctrine would undermine remain largely undisturbed. In short, the doctrine restores accountability for major policy to the legislature, restrains agency self-aggrandizement, and does so incrementally, thus moving the law toward original structure without detonating past actions of the administrative state.

But the major questions doctrine’s effectiveness as a shadow doctrine may shore up the status of the delegation doctrine, even if it is the administrative state’s most substantial distortion of the constitutional separation of powers. For instance, Justice Kavanaugh relies on the presence of the major questions doctrine in his Consumers Research concurrence as a reason to accept the majority’s application of the intelligible principle test for the delegation doctrine. Thus, one problem with doctrines created by the “hydraulic pressures” mentioned by Gorsuch (rather than those compelled by a formal reading of text) is that they may lessen the pressure for more substantial course corrections even when justified.

Prospective Overruling

Is there a way to restore a stricter nondelegation regime without disturbing the vast network of statutes and regulations built on more permissive doctrines? Rappaport and I have defended a concept—prospective overruling—that, when applied to delegation, offers a disciplined way to do just that. Prospective overruling mitigates those reliance costs while putting the Constitution on a glide path back to its original meaning.

In a case squarely presenting the issue, the Court would announce the governing standard: Congress must make the policy choices; administrators may implement the law and find facts. In subsequent cases, future delegations would then have to conform to that rule. Existing statutes, however, would remain enforceable, creating a safe harbor for preexisting delegations and the regulations issued under them. The virtue of this two-step is that it would apply the original meaning to a single, recent enactment rather than to numerous statutes enacted over a lengthy period, thereby minimizing reliance costs while reestablishing the proper separation of powers.

The contrast with retrospective overruling underscores why prospectivity is the sounder course. If a stricter delegation rule were applied to the past, Congress would face enormous pressure to replace, in short order, a sprawling body of law—an institutional task made harder by both the sheer quantity of provisions to review and the strategic behavior that inevitably attends omnibus renegotiation. By contrast, prospective overruling leaves no regulation under a current delegation vulnerable to immediate invalidation; it channels change through ordinary legislative time, allowing Congress to transition one statute at a time, with notice of the constitutional standard that now governs.

Prospective overruling also encourages Congress to develop practical institutional responses consistent with the new constitutional framework. Legislators can choose to write more determinate statutes that they prefer, however, to empower expert agencies. They can then instead require that major rules obtain fast-track legislative approval before taking effect, thus ensuring that elected representatives, not administrators, make the ultimate policy choices. Congress can also build advisory capacity, such as its own regulatory advisory units, to inform those more specific choices. By putting Congress on notice and giving it time, prospectivity reduces the reliance of both individuals and governments while re-anchoring delegation in the Constitution’s original design.

The Roberts Court has already reclaimed much of the Constitution’s design for executive and judicial powers without disturbing settled administrative programs. The delegation doctrine remains the outlier. By tolerating broad grants of policymaking discretion, it allows Congress to shed the hardest choices and invites presidential lawmaking through rulemaking. A measured, prospective overruling of the “intelligible principle” test would correct that anomaly. It would preserve reliance while restoring accountability so that rules binding private conduct are again made by Congress, in public, through bicameralism and presentment. That is not a revolution but a return to the constitutional structure that promotes enduring liberty.

Ever since the horrifying Hamas terror attack on Israel on October 7, 2023, Western reporting on the roots of that attack and the Israeli government’s response to it has suffered from serious misunderstandings. In While Israel Slept—borrowing from John F. Kennedy’s first book, Why England Slept, and, more directly, from Winston Churchill’s 1938 collection of speeches, While England Slept—two prominent Israeli journalists, Yaakov Katz and Amir Bohbot, set out to correct those misunderstandings. While their opening chapters focus on the immediate context of Hamas’s surprise attack, later chapters explore the deeper roots of that unpreparedness, going back over two decades before. Katz and Bohbot provide the closest thing to a definitive account of the events of 2023 and its causes—even if some prescriptions in their conclusion are debatable.

The biggest error in much of the reporting on Israeli policies over the years leading up to the attack portrays the Israeli government, usually under the leadership of Prime Minister Benjamin Netanyahu, as excessively warlike and unsympathetic to the needs of Gaza residents. To the contrary, the authors demonstrate, Netanyahu and his fellow ministers erred by turning a blind eye to the preparations Hamas leaders had been making for war against Israel for at least a decade, accumulating billions of dollars in cash and shipments of materials to construct an elaborate network of tunnels along with an ample supply of drones, rockets, and other weaponry. 

Desperate to avoid major conflict, Israeli leaders, including Netanyahu (and for less than two years the ostensibly “right-wing” Naftali Bennett and his “centrist-liberal” successor Yair Lapid), engaged in what political analysts during the Cold War called “mirror imaging.” That is, just as Cold War “doves” like Jimmy Carter’s secretary of state, Cyrus Vance, allowed themselves to believe that Soviet leaders, just like their American counterparts, aimed above all at peace and prosperity, successive Israeli political and military leaders supposed that Hamas leaders, too, wanted prosperity and stability. Accordingly, Israeli leaders believed major financial aid and even “dual-use” tunnel-building equipment would divert Hamas from any aggressive intentions, allowing them to focus instead (as the Israelis did) on advancing their people’s economic well-being. 

In addition, both Netanyahu, who had previously called for the complete “dismantling” of the Hamas regime, along with his far-right finance minister, Bezalel Smotrich, came to regard the regime as an “asset” in that its existence would prevent any moves towards a “two-state solution” to the conflict between Israel and the Palestinians. That is, given Hamas’s widely recognized status as a terrorist group, in contrast with the Palestinian Authority (which governed the West Bank and engaged in negotiations with the outside world), no responsible parties would press for a unified Palestinian state.

In effect, the authors observe, for years Israeli authorities paid “terrorist blackmail” by facilitating the transfer of funds to Hamas from assorted Western “charities” and especially the Gulf States in an attempt to delicately “balance” weakening Hamas and elevating the prosperity of “the average Palestinian.” “Consecutive governments … believed that improved conditions in Gaza would lessen Hamas’s incentive to go to war,” ignoring “the fact that Hamas was a genocidal terrorist organization” that fired nearly 5,000 rockets into Israel in 2014 alone, while infiltrating killers through its attack tunnels.

When Israel did experience major military attacks from Gaza and elsewhere during those years, the government sought to respond in the most limited manner possible. Even the two terrifying Intifadas of 1987–93 and 2000—terrorist attacks massacring hundreds of Israeli civilians—were met with Israel launching rockets into the adjacent territories, but without any major ground incursion. (The main response was the construction of a defensive wall around Israeli territory.) And subsequently, in response to the 2006 kidnapping by Hamas of a single young Israeli soldier, Gilead Shalit, Israel (under Netanyahu) agreed in 2011 to release 1,027 prisoners, including the future leader of the October 7 attack, Yayah Sinwar. Shortly after the 2014 attack, when presented by a special intelligence unit with a plan to “deal a devastating blow to Iran and its proxies,” Hezbollah and Hamas, Netanyahu “hinted that he did not want wars to continue endlessly” and preferred to assist Qatar’s plan for financing Hamas operations.

Meanwhile, as the authors note, Hamas leaders, above all Sinwar, spent years carefully studying Israelis’ mentality. During his twenty-two-year prison stint for murdering four (actually, he boasted, twelve) alleged “collaborators,” Sinwar learned to speak Hebrew fluently and read books by former Israeli prime ministers Menachem Begin and Yitzhak Rabin as well as the “revisionist” Zionist Vladimir Jabotinsky. At the tactical level, meanwhile, many Gazans acquired detailed knowledge of the Israeli territory they would invade in 2023 thanks to the authorization by the tough-talking Bennett for up to 14,000 Gaza residents to obtain permits to work in Israel. Sinwar himself, having learned of Israelis’ reluctance both to incur casualties themselves (as in Shalit’s case) and to inflict them on civilians, took care to surround himself during his travels around Gaza “with children on his lap or holding them in his arms,” making them his “personal human shields.”

But Israeli leaders themselves do not bear sole responsibility for their lack of preparedness against a major terrorist attack. As Katz and Bohbot observe, Ariel Sharon’s withdrawal of forces from Gaza in 2005 was made under pressure from the George W. Bush administration, so as to refute “claims that the Jewish state was still occupying” the territory. Subsequently, when Israel responded to the construction of tunnels into its territory and its rocket launchings by undertaking Operation Cast Lead, its “first large-scale ground offensive into Gaza since” the 2005 pullout, the government, against the advice of defense minister Yoav Gallant, halted the operation only two weeks later “to start building a relationship” with newly elected US President Obama. Although Americans then “promised to create a mechanism” to “curb the smuggling of weapons” into Gaza, “nothing was done.” Had Cast Lead been allowed to continue into the heart of Gaza City, former Israeli political and military officials later maintained, “the Hamas regime might have been toppled,” and replaced by “the more pragmatic Fatah,” which governs the West Bank under Israeli supervision and had signed the 1993 Oslo Peace Accords. 

None of this background, however, can excuse the multitude of Israeli errors that allowed the October 7 attack to succeed. Back in 2016, as the authors recount, the country’s “hardline” defense minister, Avigdor Lieberman, distributed a “top secret” assessment of the situation in Gaza to Netanyahu and the heads of the Israeli armed forces and of military intelligence, which urged launching a pre-emptive strike against Hamas before the group could capture an Israeli town along with numerous hostages. The document also revealed Hamas’s “long-term strategy,” including a buildup of its military force by 2020 (as occurred) and plans for a “multifront campaign” by numerous terrorist groups (along with “attacks on Jewish targets worldwide”), aimed at destroying the Jewish state by 2022. But Lieberman’s assessment was ignored.

I shall not review here the egregious tactical mistakes that military leaders made in response to the utterly unexpected October 7 attack—exemplified by their disregard of the warnings issued by (young, female) military border watchers who conveyed warnings of unexpected, suspicious events transpiring in Gaza in previous days. (The young women were all killed.) However, once the invasion was recognized as such, Israeli military members and even civilians displayed numerous examples of heroism and tactical cleverness that enabled Hamas’s defeat. The authors single out some nine “meticulously executed operations,” including the elimination of several Hamas military and political leaders and “the remarkable pager and walkie-talkie attack” of 2024 that killed dozens and wounded thousands of Hezbollah operatives, signaling “Israel’s resurgence.” Perhaps most importantly, the authors—in agreement with John Spencer, chair of urban warfare studies at West Point’s Modern War Institute—refute the libelous charges of “genocide” hurled at Israel by emphasizing that it achieved victory, against an enemy that hid underneath schools and hospitals, “in a way not seen before in the history of war, taking unprecedented steps to minimize the loss of civilian life.”

Among the authors’ concluding recommendations, some seem more meritorious than others. The wisdom of their call to reform Israel’s intelligence system to promote the exchange of diverse opinions and the sharing of information among the government and military leadership is unarguable. Similarly desirable for Israel is the adoption of “a preemptive strike policy” to prevent its enemies “from reconstituting their capabilities once the high-intensity stage of war is completed” (a timely lesson for the immediate present). On the other hand, their blaming “the Netanyahu government” for introducing in January 2023, a “controversial judicial overhaul” that divided the Israeli public, thereby offering Israel’s enemy an opportunity “to accelerate and deepen Israel’s distress” (this per a private letter from intelligence officials to the cabinet and prime minister) is unfair. Although the Israeli public was stirred by the media to protest the proposed overhaul as undemocratic, a look at the proposal demonstrates that it was more, not less, democratic than the system it would have replaced. 

What is not widely understood in the US is that since Israel, unlike this country, lacks a written constitution, Israel’s highest court has claimed the right to strike down whatever legislation it pleases if it fails to meet the standard of what a court majority deems “reasonable.” Moreover, whereas all federal judges are chosen by elected officials, a majority of Israel’s supreme court are selected through a process of co-optation. That is, they are chosen by a nine-member Judicial Selection Committee consisting of three sitting Supreme Court Judges, two cabinet ministers, two Knesset members, and two representatives of the Israel Bar Association. In sum, of the selection committee, only four members are elected legislators, while five belong to the legal establishment. It is this system that Netanyahu sought to democratize. And as the authors acknowledge, “the opposition often refused to entertain [even] middle-ground solutions.” The demonstrations against the judicial reform bill may have helped encourage Hamas to strike when it did, though the long-planned attack would have occurred eventually.

Netanyahu’s conduct of his nation’s foreign and defense policies, as Katz and Bohbot demonstrate, was sometimes deeply flawed (albeit in a manner shared by his rivals, Bennett and Lapid, when they were in office). Nonetheless, before one blames Netanyahu for “dividing” his country at a time of grave danger, one should consider the following recollection by Lapid in September 2024—almost a year after the Hamas attack—of his coalition’s aims before and after the war’s onset:

Whenever it has been necessary so far, we knew how to march the 56 Knesset members of the opposition into the Knesset plenum and vote the right way or work together in committees to do what needs to be done. I’m telling you, for the sacred cause of overthrowing this horrible government of ours, we will be very functional.

Calling the defeat of one’s country’s “horrible” government a “sacred” quest hardly sounds like the language one would expect from a loyal opposition amidst a country’s war for survival. (Fortunately, Lapid adopted a more conciliatory tone at the Knesset session where the recent peace settlement was formally announced.) But that Israel will continue to stand in need of a spirit of unity, regardless of which party governs, is indicated by the following statement issued by Hamas on the day that President Trump announced the ceasefire agreement: “We emphasize our determination to continue with the resistance in all its forms until our rights are achieved—first and foremost the removal of the occupation, [Palestinian] self-determination, and the establishment of an independent [Palestinian] state with full sovereignty with Jerusalem as its capital” (emphasis added).