Congress Should Write the Laws, and Other Radical Ideas From Article I

I have a radical proposal. It is so radical that it appears in the very first sentence of the very first article of the Constitution. Are you ready? Here it is: the people who write the laws should be the people you elected to write the laws.

I know. Shocking. Hold onto your hat. Because if you read a modern federal statute, and then read the rule that an agency wrote under it, and then read the guidance document the agency wrote to explain the rule, you will notice something. The first document has a few pages of broad goals. The second has hundreds of pages of detail, definitions, deadlines and penalties. The third has more. Which of those documents did the voters send somebody to Washington to write? By the letter of the Constitution, the answer is the first one. By the daily experience of anyone who runs a business, farms a field or builds a house, the answer is the other two.

That gap is the subject of the nondelegation doctrine, which is a fancy name for a plain idea: Congress cannot hand its core job to somebody else. Let me give you the text, the cases, the best argument against it and my verdict.

The text

Article I, Section 1 says: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Read the first four words again. All legislative powers. Not some, not most, not "the interesting ones." The founders took the people who write laws and put them in one room, made them stand for election, made them answer to different electorates in two chambers, and gave the president a veto over what they passed. The whole machine of Article I, Section 7, with its bill, its two votes and its signature or veto, is the process by which a rule becomes a law. A rule that skips that process, written by someone who never faces the voters, has not gone through the door the Constitution built.

The doctrine follows from the text in a simple way:

1. The Constitution vests all legislative power in Congress.
2. A power that has been vested in one body cannot be handed to another without amending the Constitution.
3. Therefore Congress may not delegate its legislative power to the executive branch, to agencies, or to private groups.

The cases, in order

If the doctrine is that obvious, why does everyone ignore it? Because the courts have, for most of two centuries, drawn the line in a different place. Here is the path.

Wayman v. Southard (1825). Chief Justice John Marshall faced a challenge to a law that let federal courts write some of their own procedural rules. He accepted that some power may be delegated, and he distinguished between the important subjects that Congress itself must decide and the details that others may fill in. He admitted the line was hard to draw. But he stated the principle that the legislature must make the important choices.

J.W. Hampton Jr. and Co. v. United States (1928). Chief Justice William Howard Taft wrote the opinion that gave us the phrase most people associate with the doctrine. The Tariff Act of 1922 allowed the president to adjust tariff rates to equalize the differences in the cost of production between the United States and foreign countries. The Court upheld it, because Congress had laid down an "intelligible principle" to guide the president. If Congress sets a principle and tells the executive to act on it, the Court said, the law is not an unconstitutional delegation.

Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States (1935). Here are the only two cases in which the Supreme Court has struck down a federal law for giving away too much lawmaking power. Both involved the National Industrial Recovery Act. In Panama Refining, decided in January 1935, the Court invalidated a provision letting the president ban the interstate shipment of certain oil, because Congress had set no real standard. In Schechter, decided in May 1935, the Court unanimously struck down the broad grant of authority to approve industry codes of fair competition. I cover the Schechter case from the commerce angle in A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause.

After 1935. Since then, the Court has upheld every delegation put in front of it. In Mistretta v. United States (1989), the Court upheld Congress's creation of a Sentencing Commission with power to set sentencing guidelines. In Whitman v. American Trucking Associations (2001), the Court unanimously upheld the Clean Air Act's instruction that the EPA set air quality standards at the level "requisite to protect the public health." In Federal Energy Administration v. Algonquin SNG (1976), it upheld presidential power to adjust oil imports under a trade statute. The "intelligible principle" test became a very low bar.

Notice that last point if you care about tariffs. Congress holds the power to lay duties and regulate foreign commerce under Article I, Section 8. For many decades, though, it has handed presidents wide room to adjust trade measures by statute, and the courts have been generous on that point going back to Hampton in 1928. If you want to know what is open on the tariff statutes now, read the opinions at supremecourt.gov rather than the cable news summaries.

Gundy and Gorsuch

In 2019 the doctrine got its biggest hearing in decades. Gundy v. United States concerned the Sex Offender Registration and Notification Act of 2006, which left to the Attorney General the decision of how the registration rules would apply to people convicted before the law passed. Herman Gundy argued that this was too much power handed over.

The Court upheld the law. Justice Elena Kagan wrote for a plurality of four. Justice Samuel Alito joined in the result and added that if a majority of the Court were willing to reconsider the intelligible-principle test, he would be willing to look at it. Justice Brett Kavanaugh did not take part in the decision. Three justices dissented: Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas.

Gorsuch's dissent is the clearest modern statement of the doctrine. He argued that the Constitution's separation of powers protects liberty by making it hard to pass laws, and that this difficulty is not a bug. He explained that there are three things Congress may legitimately let the executive do. It may let the executive fill in the details of a law, within the policy the legislature has set. It may make the law's application depend on a fact the executive finds, such as whether a condition has been met. And it may give the executive responsibilities that were already in the executive's domain, like foreign affairs. What it may not do is hand the executive the power to make the rules for private conduct from scratch.

Count the votes and you can see the state of play. Eight justices took part. Three said enforce the doctrine. One said he might. Four said the existing test is fine. It is a live question, and I expect it to come back.

The Congress that wants to be a Congress: the REINS Act

If courts will not fix the problem, Congress can. The best-known proposal is called the REINS Act, which stands for Regulations from the Executive in Need of Scrutiny. Under it, any "major rule," usually defined as one with an annual effect on the economy of $100 million or more, could not take effect until Congress approved it by a joint resolution that the president signs. The House has passed versions several times. It has not become law.

That idea is sometimes called a reverse of the Congressional Review Act of 1996. Under the Review Act, Congress may disapprove an agency rule after the fact by joint resolution, but the president can veto the disapproval. Under REINS the default flips, and the rule dies unless Congress acts. The point of both is the same: bring the voters' representatives back into a process they had drifted out of.

A test you can run at the kitchen table

Courts speak in phrases like "intelligible principle," which tells an ordinary reader very little. Here is a way to feel the difference. These three sentences are hypothetical, written for teaching, and none of them is a real statute.

• Sentence A: "The Secretary shall set the maximum allowable concentration of substance X in drinking water at the level the best available science shows to be safe for human health, and shall review the level every five years."
• Sentence B: "The Secretary shall issue such rules as the Secretary considers to be in the public interest."
• Sentence C: "No person may sell product Y in interstate commerce after January 1 unless the product meets the standard in Appendix 2, and the Secretary shall publish measurement procedures to apply that standard."

Sentence A names a goal, a subject, a measure and a schedule. The agency has work to do, but the policy is Congress's. Sentence C is nearly a complete rule of conduct, with the agency supplying procedures. Sentence B is different. It names no subject and no measure, and it leaves the Secretary free to decide what the public interest requires. If the statute says nothing more than that, the real lawmaker is the Secretary. That is the kind of grant the doctrine is aimed at.

The question to ask is how much of the choice Congress made. If you can state the policy by reading the statute, it was Congress's choice. If you must read the agency's rule to learn what the policy is, Congress passed the buck.

The strongest objection

Now let me do what a fair-minded person should do and state the other side as well as I can.

The objection from complexity goes like this. In 1789, the federal government was a few hundred employees, and the laws could be short. Today the government regulates air traffic, pharmaceuticals, the electric grid, the securities markets, nuclear plants and the internet. No Congress of 535 members, holding hearings, can write the technical details of a rule for the safe landing of a jet or the allowable level of a chemical in a river. If Congress could only legislate details itself, it would either pass nothing or pass laws so long that nobody could read them. Delegation, in this view, is not a betrayal of the Constitution. It is how any modern government functions.

There is a second point: delegation can also be a conservative tool. A president who can adjust a tariff quickly or respond to a sudden emergency without waiting for Congress may serve national interests that a slow legislature cannot. Plenty of Republicans have been glad to have that flexibility when their president held the pen.

Here is my reply, in three points.

1. Detail is not the same as policy. Nobody is asking Congress to write the safety specifications for a bolt. Gorsuch's three permitted categories leave plenty of room for agencies to work out details inside a policy that Congress has chosen. The problem arises when Congress leaves the policy itself undecided, on the theory that it is easier to let the agency decide and then complain about it.
2. Delegation is attractive to Congress for the wrong reasons. A member who votes for a vague law can claim credit for the goal and blame the agency for the pain. That is not an argument from complexity. That is an argument from convenience, and it is a good reason to demand that members take real votes on real choices.
3. Voters lose the ability to hold anyone accountable. When a rule can be traced to a law that said "protect the public interest," no one at the ballot box can say which candidate was responsible for what. The farmer in Iowa and the shop owner in Ohio get a rule that nobody voted for.

A conservative also has to confront a hard truth. Republicans in Congress have delegated just as readily as Democrats when it suited them. A principle that only binds your opponents is not a principle. The same worry sits behind the end of Chevron deference, which I describe in Chevron Is Gone, and Here Is What Loper Bright Changed for Everyone, and behind the removal-power fights in Who Can Fire the Regulators? A Timeline From Myers to Seila Law. Taken together, they point in one direction: toward a government in which an elected lawmaker, not an anonymous official, answers for the rules.

The bottom line

• Article I says "all." All legislative powers are vested in Congress. The nondelegation doctrine is the claim that the words mean what they say.
• The Court has struck down delegations only twice. Both were in 1935. Since then, the "intelligible principle" test has been a very low bar, but three justices in Gundy signaled a willingness to tighten it.
• Fix it in Congress. The REINS Act would require a vote on major rules. Ask your representative where they stand on it. See the bills page to track related legislation.
• Read the statute behind the rule. When a federal rule affects your farm, your business or your family, ask what law authorized it and how specific that law was.
• Apply it to both parties. A rule you hate and a rule you love came from the same process. If you want the process fixed, you have to accept the fix for your side as well.