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The Plot to Level the Administrative State

The Supreme Court's conservative majority could use an obscure legal doctrine to permanently kneecap the ability of progressives to govern.

Win McNamee/Getty Images

The nondelegation doctrine, unlike most legal concepts, is less boring than it sounds. After the 1930s, it became constitutional esoterica, a relic of a bygone age in which the Supreme Court resisted efforts by Americans to regulate their own economic affairs. But it has the potential to overthrow most of the federal government if wielded in a certain way, and the Roberts court could soon give it startling new relevance.

The doctrine’s puissance lies in the separation of powers. In the American constitutional order, it’s the role of Congress to write the laws and the role of the executive branch to carry them out. The doctrine bars any branch from handing its powers to another branch. Congress can’t pass a bill that gives the president the power to write his own legislation, for example. Nor can the president instruct the military to take orders from the House and Senate Armed Services Committee instead of himself. Sounds simple enough.

For more than a century, however, lawmakers have tackled complex issues of national governance by creating regulatory agencies within the executive branch to address them. Those agencies, empowered with a certain degree of discretion, relieve Congress of the burden of determining which drugs are safe for the marketplace and which pollutants can’t be released into the air or groundwater. This interplay between executive and legislative power might not be exactly what James Madison and Alexander Hamilton had in mind in 1789. But it has nonetheless formed the bedrock for modern American governance.

Last year, all five members of the Supreme Court’s conservative majority expressed a willingness to revisit the doctrine. It’s tempting to think that the justices might be onto something here. I’ve written extensively in the Trump era about how lawmakers have sometimes given the executive branch too much latitude, particularly when it comes to national security and immigration. But the movement to expand the nondelegation doctrine doesn’t seek a healthier relationship between Congress and the administrative state. Instead, it hopes to roll back the administrative state itself.

The justices called up the nondelegation doctrine from the constitutional minor leagues in 2018, when they agreed to hear Gundy v. United States. At issue was the Sex Offender Registration and Notification Act, or Sorna, which requires people on sex-crime registries to keep their registration current and notify states when they move. Congress gave the attorney general the discretion to determine whether those requirements would apply to people convicted before the law went into effect, which he did. Herman Gundy, who was convicted of sexually assaulting a minor in Maryland, was later convicted of violating Sorna’s requirements because he failed to register in New York.

Justice Brett Kavanaugh had not been sworn in by the time oral arguments took place and thus missed the opportunity to participate in the case. Four of the court’s members voted to uphold the law, with Justice Elena Kagan writing for the plurality. Justice Samuel Alito voted in favor of that plurality’s outcome, perhaps to avoid a 4-4 deadlock that would have left the case unresolved. He also drafted a short concurring opinion to keep himself at arm’s length from their reasoning, writing that he would be willing to revisit the nondelegation issue in a future case. (Kavanaugh later expressed a similar stance.)

The case drew little mainstream notice and became overshadowed by other rulings in the court’s docket last June. But Justice Neil Gorsuch’s dissent, joined by Chief Justice John Roberts and Justice Clarence Thomas, immediately caught the attention of legal academics. Gorsuch wrote that it was time for the high court to intervene in Congress’s apparent abdication of responsibility. “To leave this aspect of the constitutional structure alone undefended would serve only to accelerate the flight of power from the legislative to the executive branch, turning the latter into a vortex of authority that was constitutionally reserved for the people’s representatives in order to protect their liberties,” he wrote.

Sorna may seem like an odd place for the court’s majority to make a stand on congressional abdication and executive overreach. But Gorsuch noted that what could be deployed against one of society’s most disfavored groups could not be limited strictly to them. “If the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people,” Gorsuch wrote. “The statute here also sounds all the alarms the founders left for us.”

The court’s majority disputed his analysis of the situation—and raised alarms of their own about the implications of Gorsuch’s argument. Kagan noted that Congress gave the attorney general some discretion on the law’s applicability to pre-Sorna offenders so he could delay it if there were transition issues as the law came into force. “That statutory authority, as compared to the delegations we have upheld in the past, is distinctly small-bore,” she wrote. “It falls well within constitutional bound. Indeed, if Sorna’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

Gorsuch’s argument pivots around the assumption that the nondelegation doctrine reflects the Founders’ understanding of the Constitution, a view shared by many originalist scholars over the past 30 years. But other academics disagree. Two University of Michigan law professors, Julian Davis Mortenson and Nicholas Bagley, argued in a new paper that such delegations were hardly unusual in the early republic. “In fact, the founding generation saw nothing untoward about provisionally delegating the power to make rules so long as Congress did not permanently alienate its power to make laws,” they wrote. “Originalists have conflated the two when reviewing the historical record, but the difference is profound.”

Mortenson and Bagley surveyed an assortment of founding-era texts, including works by the founders themselves as well as English philosopher John Locke, whose work contributed to our own system. “Some writers were committed to an anti-alienation principle, arguing that the legislature could not irrevocably transfer or renounce its ultimate authority to chart the nation’s course,” they concluded. “But any such prohibition on the everlasting transfer of legislative power was worlds apart from the nondelegation doctrine that appears in the Gundy dissent.” Mortenson and Bagley also noted that the first Congress itself “delegated in sweeping terms” on notable matters, including tax collection and the governance of the territories.

Their analysis of the historical record isn’t without challengers. Ilan Wurman, an Arizona State University law professor, published a critique last week of Mortenson and Bagley’s “provocative and thoughtful new paper” on originalist grounds.* He wrote that the two academics did not properly distinguish between the types of legislative power that Congress could delegate and challenged their readings of Locke and early federal statutes. “The First Congress did not come even close to testing that proposition—its statutes were not nearly as broad as Mortenson and Bagley seem to think they were,” he wrote, “it rarely authorized the creation of rules that actually altered private rights and obligations (if it did so at all), and when it might have done so the rules did not alter rights or obligations in any significant way or the rules were in the context of presidential powers.”

This debate may seem a little abstract and arcane at the moment. But it likely heralds a monumental shift in how the courts, and especially the Supreme Court, treat the administrative state. Even if most federal agencies survive the Roberts court’s scrutiny, expanding the nondelegation doctrine would make it easier for conservative legal groups to hinder progressive efforts to reform health care and tackle climate change by stripping agencies of their ability to act with discretion and perform the nuts-and-bolts aspects of their work. After all, the courts are also a branch of government, and the doctrine’s revival isn’t just about executive or legislative power but raw judicial power as well.

* This article originally stated that Wurman was a law professor at Yale University.