West Virginia Record

Friday, February 28, 2020

Reviving the non-delegation doctrine means restoring the separation of powers

Their View

By Nigel Jeffries | Dec 17, 2019


CHARLESTON – Beginning in earnest since the New Deal in the 1930s, Congress has created an unfathomable amount of executive agencies and tasked them with filling in the details of unfinished legislation. Today, executive agencies are given large swaths of authority — and money — to regulate nearly every aspect of our daily lives. Agency rulemaking has replaced congressional lawmaking at the expense of democratic accountability  

The unchecked accumulation of legislative and judicial power within executive agencies has lead to what has been termed the “administrative state”. Underpinning the proliferation of the administrative state is a 1928 Supreme Court ruling, J.W. Hampton and Co. v. U.S., which held that so long as Congress provides executive agencies an “intelligible principle” with which to work, Congress has fulfilled its legislative duties and may leave the implementation of the law to the executive. The United States Supreme Court seems poised to overturn that ruling and revive the long-dormant non-delegation doctrine. 

The non-delegation doctrine starts with the fundamental understanding that the power to make law rests with the legislative branch, the power to execute the law rests with the executive branch, and the power to interpret the law rests with the judicial branch. Article I, Section 1 of the United States Constitution declares that “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.” As far back as 1690, John Locke stated, “The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.”


The last time the United States Supreme Court struck down a statutory provision under the non-delegation doctrine was 1935. Several state courts, however, still adhere to the doctrine of non-delegation.

The purpose behind the establishment and preservation of the separation of powers is to protect the delicate checks and balances that prevent the concentration of power in one branch of government at the expense of the others. The United States Constitution does not contemplate the modern administrative state — often referred to as the fourth branch of government — because the Constitution’s Framers would never have authorized the executive branch to create the broad regulatory programs we see and live with today. 

The branch responsible for making the law has long ago decided to contract out most of the actual lawmaking to the executive branch. As a result, the executive branch, in effect, writes and enforces the law through executive agencies. 

Unfortunately, Congress is not going to take back policy-making power from the executive branch voluntarily. This is where the non-delegation doctrine plays its part. The central premise of the non-delegation doctrine is that Congress cannot grant unbounded rulemaking discretion to the executive branch. Grants of discretion must be precise and well-defined. Statutes that do not conform to the preceding standard would be constitutionally defective and invalid. Currently, without clear directives from Congress, executive agencies are free to fill in the gaps, resulting in an ever-growing bureaucracy  

A bureaucracy is not noted for its accountability or simplicity. It is easy to contact your representative, but who does one contact when an executive agency promulgates a rule that affects your business or you personally? What recourse does the average American have within the rulemaking process when only lobbyists can successfully navigate the administrative thicket?

Congress delegates because it is more convenient to delegate. However, convenience is not a justification for disregarding the Constitution. Rather than delegating outright, Congress could request an agency’s technical assistance in drafting legislation. The agency would bring to bear its expertise while Congress would retain its exclusive role in lawmaking.

Reviving the non-delegation doctrine means restoring the separation of powers between the three branches of government as required under the United States Constitution. 

Jeffries is an attorney in Charleston.

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