Nondelegation Doctrine and The Major Questions Doctrine

 Prof. David Bernstein argues: "Almost no one who says there is no 'nondelegation doctrine' really believes it. Can Congress pass a law telling the executive 'do good stuff' and the executive spend and regulate based on that law? No? Then you think there is a nondelegation doctrine."

As Chemerinsky observes, the nondelegation doctrine is "the principle that Congress may not delegate its legislative power to administrative agencies. The nondelegation doctrine forces a politically accountable Congress to make the policy choices, rather than leave this to unelected administrative officials."

Although prior to the New Deal takeover of the judiciary the Court applied the doctrine to invalidate New Deal rule-making, the modern Court has adopted an "as you wish" type of deference to uphold even delegations without much in the way of "intelligible principles"  to guide executive rule-making. As Chemerinsky says, "this reflects a judicial judgment that broad delegations are necessary in the complex modern world and that the judiciary is ill-equipped to draw meaningful lines."

The cost of this deference, of course, is the separation of powers created by the Constitution to protect liberty from unaccountable exercises of power by unelected bureaucrats.

There are some voices on the Court today to revive the nondelegation doctrine as essential to policing the boundaries established by the Written Constitution and the "framers design." But I'm not holding my breath awaiting the resurrection of the nondelegation doctrine and the founder's structural architecture.

However, again as Chemerinsky notes, "the Court has developed another doctrine that achieves some of the goals of the nondelegation doctrine: 'the major questions doctrine.' This is the principle that Congress must give agencies clear direction when they are acting as to major questions of economic or social significance."

The bottom line is Congress can even delegate lawmaking of major questions to executive agencies so long as they give clear direction to do so.