Non-Delegation Doctrine

The Non-Delegation Doctrine holds that Congress may not delegate its legislative power to the executive branch or to administrative agencies. Rooted in Article I, Section 1 of the Constitution, which vests all legislative powers in Congress, the doctrine serves as a structural safeguard ensuring democratic accountability for lawmaking. However, the Court has recognized that Congress may delegate authority to agencies and the executive, provided it supplies an intelligible principle to guide the delegee's exercise of discretion.

The intelligible principle test was articulated in J.W. Hampton, Jr., & Co. v. United States (1928), and it requires that Congress lay down an intelligible principle to which the person or body authorized to act is directed to conform. In practice, this test is extremely deferential. The Supreme Court has struck down only two statutes on non-delegation grounds, both in 1935: Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States. Since then, no federal statute has been invalidated for violating the non-delegation doctrine, and the Court has upheld sweeping delegations with vague standards such as in the public interest, convenience, and necessity.

Despite its dormancy, the non-delegation doctrine has experienced renewed interest. In Gundy v. United States (2019), four justices signaled willingness to reinvigorate the doctrine, and Justice Gorsuch's dissent proposed a more stringent test requiring that Congress make the important policy decisions itself rather than deferring them to agencies. The doctrine's revival would have significant implications for the modern administrative state, potentially limiting the scope of agency rulemaking authority.