Nondelegation Is Back. Cue Meltdown.

The nondelegation doctrine must be wielded with care. But those who claim it’s illegitimate should know better.

I once asked a student employee at the UC Berkeley bookstore if she could show me to a copy of the Federalist Papers. “The Federalist Papers?” she asked, expression blank. She couldn’t help me because, quite clearly, she didn’t know what the hell I was talking about. Can’t really blame her—such is the state of American civics education. To pass for a cultivated person in 2024, it is absolutely essential to know and celebrate the holy trinity of love, tolerance, and diversity. Understanding the constitutional separation of powers is surplus to requirements.

The Founding Fathers (patriarchy alert) set up a pretty great system. The Constitution protects us from tyranny by locking political actors in a perpetual struggle for widely dispersed crumbs of authority. Here, for those of you whose Prius-driving high school teachers turned social studies into a catechism of climate justice, systemic oppression, and anti-racism, is a primer: Power is divided between the federal government and the several states. Federal power is further divided among three branches—legislative, executive, and judicial—each equipped with tools (e.g., the power to spend, the power to veto, the power of judicial review) for checking the others. The legislature (Congress) is divided into two chambers, the House and the Senate, with distinct constituencies and concerns. The executive (the President) can’t appoint key officials without the Senate’s approval. The political branches (President, House, Senate) always have to worry about the next election. The judiciary (led by the Supreme Court) can’t do much of anything besides tell the other branches when they’ve messed up. It’s genius, really. Everything’s built to keep our greedy would-be rulers scrambling futilely over each other like crabs in a bucket. The whole edifice is structured, in James Madison’s words, to make ambition counteract ambition.

A lack of awareness about how our republic is supposed to function isn’t just lamentable; it’s dangerous. The men who convened in Philadelphia in 1787 wanted to protect a proud and honorable citizenry from the designs of would-be despots. They knew there was nothing they could do to shield people with no effing idea how anything’s supposed to work from being preyed on by demagogues. Alexander Hamilton believed that the Constitution would safeguard the nation so long as we remain “a young and virtuous people.” When “we are old and corrupt,” he sighed, “it will bind us no longer.”

In that regard, consider the media’s recent spate of attacks on the courts. Readers of the New York Times, the Washington Post, and Politico have been told that judges are “imperiling,” “stymieing,” and “freezing” the Biden administration’s “broad agenda.” “Aggressive legal challenges” were brought before “conservative judges,” who issued a “suite” of rulings that have “disrupted” and “weakened” the government and sent officials “back to the drawing board.” To be sure, some of these articles mention the real issue: the administration’s use of executive orders to go around “a closely divided Congress.” But this is effectively fine print. To go by the headlines, court rulings blocking the administration’s policies amount to one set of politicians (but in robes) willfully thwarting another (by, for instance, taking a “chain saw” to environmental rules). In one piece, Rep. Pramila Jayapal wails about an “extremist Supreme Court with a very political agenda.” In another, Rep. Ayanna Pressley attacks “far-right Supreme Court justices” for “doing everything possible to harm [student] borrowers” (read: not letting Biden illegally cancel hundreds of billions in student loans as a form of political patronage).

Sen. Sheldon Whitehouse is on a one-man mission to paint the Court as, not a caller of legal balls and strikes, but the corrupt handmaiden of corporate interests. When your goal is to ditch the rules—such as the checks and balances that stop the President from making laws without Congress’s consent—you’re naturally going to be exceedingly angry at judges who stubbornly insist on enforcing the rules. Whitehouse’s vendetta against the Court amounts to a massive exercise in projection: It is the Court, Whitehouse exclaims, that’s the rule-breaker! It has been “captured” and is “controlled” by “right-wing special interests.” It “reward[s] its big donors” (huh?) and is “out of step with the American people” (that’s … what it’s there for?). He and other Democratic senators holler about a “crisis of legitimacy” at the Court that—to the extent it exists at all—has been largely manufactured by the media and the politicians themselves.

The senators hope to get an uninformed populace so mad that they’ll accept the senators’ efforts to neuter the Court—one of the few prominent institutions in our government, if not our entire society, that still does its job properly—with (politicized) ethics oversight, (unconstitutional) term limits, and maybe some (sign the republic is dead) court packing. The truth is, the media and the pols are smearing the Court for upholding the law when the government’s other supposed adults in the room won’t, and they’re assuming most people are too clueless to understand that that’s what they’re doing, and I’m sorry to tell you this but they’re probably correct. It is as I say a perilous situation.

What’s wild is that, by and large, our elites accept and normalize the fact that the way our government operates today is a mess. The Constitution’s first three articles set forth a straightforward scheme: Congress writes the laws, the President enforces them, and the judiciary figures out what they mean when disputes arise. It’s not a complicated set up, except that our political class has spent more than a century making a hash of it. Progressive Era figures such as Woodrow Wilson shifted lawmaking power from Congress (which, in Wilson’s mind, was a benighted body lacking the mental or strategic wherewithal to govern) to the executive branch (where, Wilson thought, experts could organize society along rational lines, insulated from the whims of popular opinion). Stood up in waves through the twentieth century, executive agencies—the Federal Trade Commission, the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Environmental Protection Agency, the Nuclear Regulatory Commission, and so on seemingly forever—are the bureaucratic rulemaking engines you’ll hear referred to as “the administrative state.” It is not uncommon for Congress to write an aspirational sentence or two, in a statute, that an agency then “clarifies” with a hundred pages of rules. In other words, the agency is the real lawmaker. True to Wilson’s vision—that’s right, he meant to do this—the constitutional separation of powers has been blurred if not erased.

As Justice Robert Jackson wrote back in 1952:

The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.

Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system. Administrative agencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution. The mere retreat to the qualifying “quasi” is implicit with confession that all recognized classifications have broken down, and “quasi” is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed.

For today’s progressives, this is a desirable state of affairs. To rule over society, to direct people’s lives and tell them what to do, they need power to be unseparated—they need to wield paramount power, concentrated power, power subject to as few checks as possible. The courts stand in the way of this consolidation, and that is why the courts must be sullied, subverted, and if necessary destroyed as an independent force.

It’s bad enough, to the Jayapals, Pressleys, and Whitehouses of the world (not to mention the New York Times, the Washington Post, and Politico), that federal judges, with their constitutionally guaranteed pay and life tenure, are not easy to control. It’s enraging and utterly intolerable that, lately, some of them have been working to reinstate the proper constitutional lines. So far the Supreme Court taken only comparatively small steps: stopping agencies from launching major projects without Congress’s permission; modestly strengthening the President’s ability to remove rogue agency heads; confirming that judges, not agencies, play the primary role in interpreting the law. Soon, though, the Court could take a giant leap for constitutional restoration.

At issue is what’s known as the nondelegation doctrine. Now, if you’re not a lawyer, you’ve probably never heard of this. Partly that’s just bad branding. “Nondelegation” is a needlessly fancy name for a very basic proposition: that only the federal legislature can make federal law. Under Article I of the Constitution, “all legislative powers” are “vested” in Congress. “All” means all: Congress may not delegate its legislative powers to others (hence “nondelegation”). The rise of the administrative state has come at the expense of this fundamental principle. The agencies have become the true lawmakers, and the courts—while mouthing adherence to the separation of powers—have let it happen. The Supreme Court hasn’t struck down a statute on nondelegation grounds since 1935.

A majority of the sitting justices have expressed interest in ending that dry spell, and they are about to get their chance. Earlier this year, the U.S. Court of Appeals for the Fifth Circuit ruled that the FCC’s Universal Service Fund flouts the bar on nondelegation. Two other circuits have upheld the USF, setting up a circuit split the Supreme Court will almost certainly have to resolve. It will likely grant review of the case sometime this fall, and then issue a ruling next year.

The USF is a masterpiece of broken, unaccountable government. The FCC is instructed by law to collect money from telecommunications carriers—who in turn collect that money from telecommunications customers like you—and use it to support “universal” telecommunications service across the country. Basically, this means your average person pays a line item, on her phone bill, to subsidize telephone and internet service for rural areas, poor people, and schools, libraries, and healthcare facilities. In principle, at least, who can object to that. But in practice, the scheme is a constitutional monstrosity. The FCC, rather than Congress, decides what counts as “universal service.” The FCC, rather than Congress, decides how much money to collect each quarter. (This is nothing less than Congress giving away its power to tax. The Founders, you’ll recall, had a thing against taxation without representation.) To top it all off, the FCC has handed its power to set the USF contribution rate to a private organization called the Universal Service Administrative Company. The FCC did this without Congress’s permission, a move that seems especially bonkers when you realize that USAC is the fox guarding the henhouse—it’s run by representatives from the very schools, libraries, healthcare providers, low-income communities, and telecom firms that benefit from USF largesse. 

No one running the USF has an incentive to stick up for fiscal responsibility, and no one does. As an (obviously ignored) FCC audit observed, many recipients of handouts view the USF as “a big candy jar” of “free money.” It appears, meanwhile, that the FCC has no clue how many participants in the low-income program meet the program’s requirements. Inevitably, the size of the fund has ballooned from $1.37 billion to more than $9 billion, while the contribution factor (the tax on consumers’ phone bills) has exploded from 5% to more than 35%.

Again, two circuits let all this slide. To be fair, these courts were applying the current, essentially empty nondelegation rule, under which they’re supposed to run with any law that is not literally unintelligible. Nondelegation once meant that Congress must decide all “important subjects,” leaving it to the executive branch only “to fill up the details.” That’s how the Supreme Court put it in 1825. But as the administrative state gained in size and political clout, during the New Deal, the Court lost its nerve. By the late 1940s, it was clear that the rule had changed. Nondelegation came to mean only that a statute must contain some “intelligible principle.” Under that preposterously lenient standard, the Court has upheld laws that direct an agency simply to act in the “public interest.” Adhering to this distorted vision, the Sixth and Eleventh Circuits concluded that the USF—living proof that you cannot, in fact, reach utopia by ceding all power to the so-called experts—is sensible enough.

The Fifth Circuit found otherwise. The USF, it wrote, defies “bedrock constitutional principles.” For one thing, “Congress’s instructions are so ambiguous that it is unclear whether Americans should contribute $1.37 billion, $9 billion, or any other sum to pay for universal service.” For another, private actors at USAC “bear important responsibility” for the “policy choices” that produce those massive, shifting sums. And for yet another, “it is impossible for an aggrieved citizen to know who bears responsibility for the USF’s serious waste and fraud problems.” In short, Congress fell asleep, then the FCC passed the buck, and now some of your fellow private citizens, acting in pursuit of raw self-interest, get to treat the state’s power to tax and spend like the open bar at Jeff Bezo’s second wedding.

If the Supreme Court revives nondelegation, the ramifications for the tech industry, in particular, could be profound. Take what’s happening at Lina Khan’s FTC. Since its creation in 1914, the agency has had the power to bar “unfair methods of competition.” Read loosely, that phrase is boundless, “unfair” being one of the slipperiest words there is. To keep the FTC from going around dispensing abstract “fairness,” like the national nanny it so badly wants to be, the courts have given “unfair methods of competition” a narrow reading, not letting the FTC go much beyond enforcing the existing antitrust laws.

Khan is pushing to have most noncompete agreements declared an unfair method of competition. I’m not here to defend noncompetes; their absence from California played a role in the rise of Silicon Valley. But don’t let Khan’s immediate target distract you. Focus on the precedent Khan hopes to set: She aims to establish that the FTC’s unfair methods authority stretches to labor contracts—and thus, in logic, to virtually anything. Khan is already scrutinizing various aspects of the AI industry, including how Big Tech invests in AI startups and how leading AI firms gather data for model training. She’d love to use an expanded unfair methods authority to bring AI under her thumb. For that matter, she’d like to use such authority to unwind acquisitions and second-guess product design across the tech sector more broadly.

The noncompete ban is legally defective several times over. A judge recently blocked it, for instance, for the simple reason that the FTC must police unfair methods not with blanket rules, but only through case-by-case enforcement. But a revivified nondelegation doctrine would ensure that, even if the agency overcame every other legal hurdle, it could not treat “unfair methods of competition” as the nigh limitless concept Khan wants it to be.

Here I am going on and on about the FCC and the FTC, these obscure bureaucracies, as if they were the central actors in our system of government. If you hopped in a time machine, burst into the Constitutional Convention, and tried to poll the room about these three-letter agencies, you’d get confused looks. No one would know what you were talking about. The first such agency, the Interstate Commerce Commission, wasn’t created until 1887. What’s missing here?

Congress. Even by post-administrative state standards, Congress has gotten very bad at its job. Politicians spend ever more of their time fundraising. Owing to gerrymanders and geographic partisan sorting, compromise, during the legislative process, has gotten harder. Moderates lose primary elections to extremists, who convince the base that working with the other side amounts to weakness. Relatedly, many members of Congress are not secluded in committee, carefully redlining bills; they’re on podcasts and cable news, shouting about how the other side is evil and must be destroyed.

With Congress AWOL, the agencies have rushed in to fill the void. Congress hasn’t passed a law imposing net neutrality on broadband providers, but the FCC wants to turn broadband into a heavily regulated utility. Congress hasn’t passed a data privacy law, but the FTC thinks data collection should be forbidden “commercial surveillance.” Congress hasn’t passed crypto legislation, but the SEC is trying to treat tokens like traditional securities (functionally a ban on crypto trading). These power grabs stand, respectively, on a telecom law from the earliest days of the internet, a consumer protection law older than the personal computer, and securities regulations that date back to the Great Depression.

If Congress wants to get its act together and pass AI legislation, or crypto legislation, or data privacy legislation, that’s great. Let’s have those debates. The resulting laws could be good or bad or ugly, but they’d be the result of the people’s representatives thinking up new approaches for tackling new developments. That’s infinitely preferable to pretending that statutes signed by FDR or Richard Nixon foresaw all future technology, made provision for every fresh circumstance, and by the way crowned unelected bureaucrats our de facto legislators in perpetuity.

What we need is a more functional Congress. In the meantime, though, perk up whenever you see that needlessly fancy word, “nondelegation,” in the news. You’re about to see it a lot.

I don’t know if the Supreme Court will in fact strengthen the nondelegation doctrine, and frankly I’m not sure how far it should go if it does. Our constitutional order is malfunctioning because too much power is lodged in the executive branch. The answer to that problem can’t be to lodge too much power in the judicial branch. Nor is nondelegation a very tractable concept. How detailed, exactly, must Congress’s laws be? “A doctrine so vague,” wrote Justice Antonin Scalia, one of the Constitution’s greatest champions, might be “no doctrine at all, but merely an invitation to judicial policy making in the guise of constitutional law.” Still, Scalia mused, with Congress so persistently refusing to craft the law itself, skeptics of judicial activism “might well support the Court’s making an example of one—just one—of the many enactments that appear to violate the [nondelegation] principle.” “The educational effect on Congress,” he continued, “might well be substantial.”

Maybe that’s the answer. Or maybe the Court will have to repeat itself a few times—ignoring, as it does so, progressive howls about a “crisis of legitimacy”—before its message is heard. But if Americans won’t demand that their leaders respect the Constitution, there’s only so much the courts can do to save them from themselves. With enough public support, chancers such as Sen. Whitehouse will force a constitutional crisis rather than acknowledge constitutional limits. At some point, the judiciary—which Hamilton described (in the Federalist Papers, no less) as the least dangerous branch—must back down. There is, to repeat, only so much the Supreme Court can do.

“A republic, if you can keep it,” Ben Franklin famously said. We can’t keep a republic without understanding what the hell a republic is. So crack open a history textbook, students—a real one; no 1619 Project—and tell your fellow citizens to do the same. A tide of ignorance threatens the polity, and the judges can’t keep their fingers in the dike for long.