John McGinnis’s lead essay for this month’s Forum, “Nondelegation Without Chaos,” is a fine piece of work. But it doesn’t seem to address the essential problem with our imbalanced government: the inability of Congress to comply with the current—though widely ignored—1928 Supreme Court standard that the laws contain an “intelligible principle” that the courts can understand and apply. Instead, McGinnis has suggested a sensible but different procedure in which “the Court would require that Congress make policy choices.”
The trouble is that this new procedure looks pretty much like the old procedure. The difference is that now Congress would be required to “make policy choices” instead of following the current requirement that Congress supply an “intelligible principle” when it makes a law—an idea that the courts have more often praised than invoked.
The intelligible principle idea was introduced to guide the courts in whether or how to apply a particular law. The gentle suggestion was, essentially, to “tell us what this law was intended to do so we may apply it appropriately, but not further afield than what you (Congress) intended.” But even this simple rule has been ignored by Congress—as well as the Court—in later cases.
I have a hard time believing that a Congress that can’t state an “intelligible principle” for the legislation it is adopting would be able to make “policy choices,” which would seem to be an even higher standard.
In other words, the problem is not that the Courts have failed to make clear what they want Congress to do; it’s that Congress can’t—or hasn’t in the past been able to—state what it’s trying to achieve by a particular law, and thus how far the law extends in controlling the public’s activities.
The effect, then, is that the president, or any agency authorized to enforce the law, has greater freedom in enforcing the law than Congress likely intended. This is more than simply giving an agency or the president more power; it is an obvious separation of powers problem. Because Congress has not clarified the scope of the law, the president or the enforcement agency is able to “enforce” beyond what Congress intended.
When the Court has shown itself unwilling to strike down laws that violate the separation of powers standard, it has fallen into the “strict in theory, fatal in fact” fallacy, where the intelligible principle rule is a reasonable standard in theory, but ignored in fact. Indeed, it is hard to find a post-1928 case where the Court actually invoked the absence of an intelligible principle in invalidating a law. Schechter Poultry and Panama Refining, two cases which are often cited as based on the intelligible principle idea, both struck down laws because they were seen as straightforward unconstitutional delegations of legislative power by Congress lacking any standard at all—nothing as simple as lacking an intelligible principle. One case in which the test was actually invoked since 1928 occurred in 2001, in Whitman v. American Trucking Associations, where Justice Scalia found that a single word, “requisite,” was able to satisfy the intelligible principle test.
Rather than changing the “intelligible principle” idea—which is simple, straightforward, and at least has the value of Supreme Court acceptance in the past—the Court should actually enforce it.
If history is any guide, Congress will continue to fail this test until something is done to penalize it for failing. The problem would not be solved by making the standards tougher to meet, unless the Court actually commits to enforcing them.
The danger here, and it is a serious one, is that Congress will continue adopting broadly framed or unframed legislation, which will enable the government to prosecute people it disfavors. If the law-abiding public will not be able to understand where the fences actually are, law enforcement officials will have excessive discretion in charging violations of the law. The government will become even more powerful and dangerous, and the public more vulnerable.
The problem, then, is not whether the intelligible principle non-delegation requirement is framed, but whether Congress will be able to apply it, and that remains doubtful.
Under McGinnis’s proposed standard, Congress will be required to make “policy choices.” It would help to have some examples of what a policy choice is, but it sounds a lot more specific than an “intelligible principle” and thus even more difficult for Congress to apply.
Thus, it would be sensible to assume that Congress will not be able to do any better in complying with the “policy choices” idea than with the intelligible principle.
Since we have a system of separated powers to preserve our liberties, it’s essential that the formal separation between the legislature and the executive remain in place. The greatest threat to the separation of powers today is the failure of Congress to be more specific in the legislation it develops. Broadly worded or unspecific laws will unwittingly provide even more power to the executive branch than it has already acquired.
Thus, if the McGinnis proposal is to address the failure of Congress to make more specific laws, it’s a fine idea, but it may only enhance the problem that already exists—the inability of Congress to abide by existing restrictions on the scope of the legislation it enacts.
Accordingly, if the Supreme Court is really interested in toughening the nondelegation rule—as it should be—the answer is with the Court itself. It must make clear to Congress that it will not enforce legislation that is not specific enough to meet any test, whether it’s the existing test of an intelligible principle or the McGinnis test of chosen policies.
Years ago, we had a serious problem with the Chevron doctrine. That was an informal rule applied by the courts, which allowed administrative agencies to make rules and regulations if they could point to existing legislation that might be relevant to the question—not specifically intended to address the problem that an agency wanted to control, but somewhere within the general ballpark. This system was finally overturned by the Supreme Court in Loper Bright Industries v. Raimondo in 2024.
The problem today with excessive delegation is much the same, and can be addressed in the same way. Rather than changing the “intelligible principle” idea—which is simple, straightforward, and at least has the value of Supreme Court acceptance in the past—the Court should actually enforce it, and invalidate laws that fail to include an intelligible principle.
If the Court simply did that, it could solve a substantial part of the nondelegation problem today.