Is ‘Most of Government’ Unconstitutional?

It’s one of the most exciting possibilities in constitutional law right now: Many conservatives are clamoring to revive the long-dormant “nondelegation” doctrine, which liberal Supreme Court justice Elena Kagan has warned could invalidate “most of [the federal] Government.”

In essence, the doctrine holds that since the Constitution vests “all legislative Powers” in Congress, it is unconstitutional for Congress to turn those powers over to the executive branch. Congress may not, in other words, simply direct federal agencies to make major policy decisions themselves, the way it does now for a host of economic and environmental regulations. The courts must step in, police the separation of powers, and stop such abuses.