Nondelegation Doctrine and Executive Overreach: Supreme Court Should Limit Runaway Agencies

The Supreme Court has done a lot in the past few years to rein in executive overreach, whether from the president or the administrative agencies. By applying the guidance of the major-questions doctrine in interpreting statutes, the Court has concluded on multiple occasions that presidential and agency actions were never authorized by Congress — in other words, that the executive branch was claiming powers never delegated to it. By overturning the Chevron doctrine, the Court also disabled a tool commonly used by agencies to keep courts from looking too closely at the statutory basis of their powers.

One traditional tool for restraining executive overreach that the Court has yet to fully revive is the nondelegation doctrine. There are powers Congress can’t give the executive (although Justice Clarence Thomas has argued that these are few and limited, at least insofar as they are within Congress’s own powers to make law in the first place), and there are powers it hasn’t given the executive (which have been the subject of the major-questions cases). And there is a more limited set of Article II powers that the executive has, whether Congress authorizes them or not. In between lie situations where Congress told the executive branch to deal with some issue that is within the Article I powers of Congress, but in terms so unspecific that it amounts to letting the agencies make up whatever laws they want.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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The Supreme Court has done a lot in the past few years to rein in executive overreach, whether from the president or the administrative agencies. By applying the guidance of the major-questions doctrine in interpreting statutes, the Court has concluded on multiple occasions that presidential and agency actions were never authorized by Congress — in other words, that the executive branch was claiming powers never delegated to it. By overturning the Chevron doctrine, the Court also disabled a tool commonly used by agencies to keep courts from looking too closely at the statutory basis of their powers.

One traditional tool for restraining executive overreach that the Court has yet to fully revive is the nondelegation doctrine. There are powers Congress can’t give the executive (although Justice Clarence Thomas has argued that these are few and limited, at least insofar as they are within Congress’s own powers to make law in the first place), and there are powers it hasn’t given the executive (which have been the subject of the major-questions cases). And there is a more limited set of Article II powers that the executive has, whether Congress authorizes them or not. In between lie situations where Congress told the executive branch to deal with some issue that is within the Article I powers of Congress, but in terms so unspecific that it amounts to letting the agencies make up whatever laws they want.