The U.S. Supreme Court has invoked the nondelegation doctrine-which provides that the U.S. Congress may not delegate its lawmaking power-to strike down a federal statute only twice, both times in 1935. Recent discussions have centered on whether this doctrine should be revived to limit the power of federal agencies. However, a legal scholar argues that courts should instead focus on delegations to the President, not agencies. David B. Froomkin, an assistant professor of law at the University of Houston Law Center, contends that applying the doctrine more strictly to presidential delegations would better preserve the separation of powers.
The Nondelegation Doctrine and Its History
The U.S. Constitution grants legislative power solely to Congress. Under the nondelegation doctrine, Congress may not delegate this power to the President or agencies without providing an “intelligible principle” to guide their actions. Congress may, however, delegate authority to executive branch officials by statute if it includes an “intelligible principle” to cabin the discretion of the President or agency in carrying out the delegation. The Supreme Court has applied this doctrine sparingly, finding only two statutes unconstitutional for lacking sufficient guidance. In both cases, the Court struck down a statute that granted broad regulatory powers to the President without providing sufficient limits on the President’s discretion in implementing the statute.
Froomkin observes that the Court has used the nondelegation doctrine to apply “a more stringent standard” for delegations to the President. Because the Court has applied the doctrine with greater force against delegations to the President than to agencies, calls to “revive” the doctrine to constrain agencies would actually “reinvent” it. Instead, he argues that courts should formalize their existing practice of reviewing presidential delegations more rigorously.
Froomkin’s Counterargument
Froomkin challenges the notion that the nondelegation doctrine has failed, arguing that the modern administrative state demonstrates its continued effectiveness. After the 1935 cases, Congress adjusted its approach by delegating authority to agencies with specialized expertise in specific policy areas. This recalibration, according to Froomkin, has rendered the doctrine largely unnecessary, as courts have not needed to invoke it since 1935. Froomkin contends that after the Court last invoked the nondelegation doctrine in 1935, Congress “recalibrated its approach to delegation” and delegated to agencies with specialized expertise on particular issues.
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Proponents of reviving the nondelegation doctrine argue that its “demise” has led to the expansion of the administrative state’s powers. Froomkin challenges this conclusion, arguing that “the modern administrative state is a sign of the success of the nondelegation doctrine, not evidence of its underenforcement.” He emphasizes that courts have not needed to intervene because Congress has already structured delegations to agencies in a way that aligns with the doctrine’s principles.
Proposed Judicial Approach
Froomkin proposes a “Step Zero” analysis for courts reviewing delegations. This process would first determine whether Congress granted authority directly to the President or an agency. If the delegation is to the President, courts should apply an “intelligible principle with bite,” examining the statute’s text with heightened scrutiny to ensure Congress specified conditions for presidential action. In contrast, delegations to agencies would undergo the traditional, deferential intelligible principle test.
According to Froomkin, presidential delegations are particularly concerning because they concentrate power in a single individual. Unlike agencies, which disperse authority across multiple officials with varying perspectives, presidential delegations allow for unilateral policy decisions. Additionally, presidential actions often lack the procedural safeguards imposed by the Administrative Procedure Act, which requires agencies to base decisions on evidence and congressional objectives. The absence of such constraints for the President necessitates stricter judicial review of his delegated authority.