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.
The fact is that modern government is administrative government, and delegation has been its lifeblood.
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.
Prospective overruling mitigates reliance costs while putting the Constitution on a glide path back to its original meaning.
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.