Nondelegation Step Zero

Abstract

The nondelegation doctrine, as a matter of both precedent and logic, properly distinguishes between delegations to administrative agencies and delegations to the President, imposing more vigorous scrutiny on the latter. The nondelegation doctrine vindicates the Article I Vesting Clause by preventing Congress from being divested of the legislative power. Its purpose is to reinforce Congress’s legislative supremacy in the realm of ordinary law, not to impede Congress’s ability to achieve legislative objectives by delegating regulatory authority to administrative agencies. At the same time, the nondelegation doctrine has a valuable role to play in constraining the delegation of broad powers to the President directly, a constraint that encourages delegation of regulatory authority to administrative agencies. The diffuse structure of the modern administrative state is a testament to the great success of the nondelegation doctrine, not evidence of its underenforcement. Indeed, the contemporary push to reinvent the nondelegation doctrine in an indiscriminate way would turn it into something closer to its opposite.