---
title: "Non-Delegation Doctrine"
type: Legal Rule
source: https://casebriefly.com/legal-rules/non-delegation-doctrine
---

# Non-Delegation Doctrine

Congress may not delegate its legislative power to the executive branch or administrative agencies unless it provides an intelligible principle to guide the exercise of delegated authority. In practice, the Court has upheld virtually all delegations since 1935.

## Definition

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.

## Elements

- Congress must not delegate pure legislative power to another branch
- Delegations are permissible if Congress provides an intelligible principle to guide the delegee
- The intelligible principle must provide sufficient guidance to constrain the delegee's discretion
- The doctrine is currently applied very deferentially -- vague standards have been upheld
- Only two federal statutes have ever been struck down on non-delegation grounds (both in 1935)

## Key Case

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| A.L.A. Schechter Poultry Corp. v. United States | 295 U.S. 495 (1935) | Struck down the NIRA's delegation of authority to the President to approve codes of fair competition as lacking an intelligible principle |
| Panama Refining Co. v. Ryan | 293 U.S. 388 (1935) | Struck down a provision of the NIRA authorizing the President to prohibit interstate transport of oil produced in excess of state quotas |
| J.W. Hampton, Jr., & Co. v. United States | 276 U.S. 394 (1928) | Established the intelligible principle test: Congress must provide an intelligible principle to guide the exercise of delegated authority |
| Gundy v. United States | 588 U.S. 128 (2019) | Four justices signaled interest in reinvigorating the non-delegation doctrine, with Justice Gorsuch's dissent proposing a more stringent standard |

## Exam Tips

- Know that while the doctrine exists, it has not been used to strike down a federal statute since 1935 -- the intelligible principle test is extremely permissive
- Watch for exam questions testing whether the doctrine should be reinvigorated, referencing the Gundy dissent and recent judicial skepticism of broad agency power
- The non-delegation doctrine is closely related to separation of powers -- frame your analysis in terms of maintaining the structural balance between Congress and the executive
- Distinguish legislative delegations (limited by non-delegation) from Congress conditioning spending or using the Necessary and Proper Clause

## Common Mistakes

- Treating the non-delegation doctrine as a robust limit on congressional delegations -- in practice, it has been essentially dormant since 1935
- Confusing the non-delegation doctrine (limits on Congress giving power to agencies) with the anti-commandeering doctrine (limits on Congress directing state governments)
- Failing to note the recent signals from the Court that the doctrine may be reinvigorated (Gundy dissent)

## Mnemonic Or Memory Aid

Non-delegation has been dead since 1935 but might be a zombie: the intelligible principle test lets almost anything through, but Gundy hints at revival

## Related Rules

- separation-of-powers
- necessary-and-proper-clause
- commerce-clause
- executive-privilege

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Source: [Non-Delegation Doctrine — CaseBriefly](https://casebriefly.com/legal-rules/non-delegation-doctrine)