In recent months, we have seen the following: the U.S. Department of Education announced that it intends to implement new rules on the repayment of federal student loans that will, for many students, make college nearly free; the Consumer Product Safety Commission stated its goal of banning or at least inhibiting the purchase of stoves that use natural gas; and the Federal Housing Finance Authority declared that it is going to change mortgage lending so that buyers with good credit scores will have to subsidize those with poor scores.

The common thread in these cases is that an executive department agency wants to legislate. Bureaucrats want to enforce laws of their own devising. Doing that raises a problem under the U.S. Constitution, which vests all legislative power in Congress. The Founders envisioned a distinct separation of authority between the lawmaking Congress and the law-enforcing executive branch. And the third branch of government, the judiciary, was expected to decide disputes and interpret the meaning of the laws when necessary.

In The Administrative State Before the Supreme Court, Peter Wallison, a senior fellow at the American Enterprise Institute, and John Yoo, a professor of law at the University of California, Berkeley, probe the question, how can executive agencies like those mentioned above be allowed to implement such policies? The Supreme Court is supposed to make sure that the other branches don’t usurp each other’s powers.

For roughly a century and a half after the nation’s Founding, it adhered to the nondelegation doctrine, which holds that the legislative and executive branches could not delegate their responsibilities either to other governmental entities or to private parties. In a famous New Deal–era case, Schechter Brothers Poultry, the Court declared one of Franklin D. Roosevelt’s signature policies, the National Recovery Act, unconstitutional because the vagueness of the law gave policymaking power to executive branch bureaucrats. Congress had impermissibly delegated its authority.

But after FDR’s court-packing threat, the Court’s majority shifted and took a relaxed view of lawmaking by the administrative state. Since the late 1930s, the nondelegation doctrine has been moribund. The Constitution, however, remains unchanged and the reasons for having a separation of lawmaking and law enforcement are as sound as ever. Moreover, the Supreme Court has lately shown interest in reviving the doctrine, making the book’s collection of essays timely and valuable.

Beyond the details / In his introduction, Wallison explains that the Founders wanted divided political power “because they had seen in other countries that the people’s liberties are in jeopardy if the same person or group can both make the laws and enforce them.” The Supreme Court developed the nondelegation doctrine to prevent Congress from transferring its responsibility to the president or his officials. The Court held to that rule until it was cowed by FDR and later staffed largely by justices who were sympathetic with the “progressive” argument that society had become so complex that it simply had to be governed by expert administrators in a wide array of fields. Believing that Congress couldn’t possibly enact all the needed regulations, the courts chose to give great deference to the agencies. Trouble is, that allows contentious matters of public policy to be decided by unelected bureaucrats.

In the book’s first essay, Judge Douglas Ginsburg explores the history of the nondelegation doctrine back to Chief Justice John Marshall’s opinion in the 1825 case Wayman v. Southard, where he wrote that Congress was responsible for the enactment of laws, but executive branch officials could “fill up the details.” The problem, of course, is where to draw the line. Ginsburg observes that when the Court began accepting vague phrases like “regulate in the public interest,” it was giving far too much leeway to executive branch officials.

He also points out that agencies like to “search for new ground to occupy,” leading them to make policy when new technologies emerge that were never contemplated at the time Congress wrote the statute authorizing their actions. Why wait for Congress to act when we can promulgate rules that we think are advantageous?

In their essay, Todd Gaziano and Ethan Blevins of the Pacific Legal Foundation argue that the Supreme Court already has a solid doctrine that would solve delegation issues, namely the “void for vagueness” standard it applies in criminal law. When criminal statutes are not specific enough that a citizen can know with certainty that his conduct will be illegal, courts strike them down under that standard. Gaziano and Blevins maintain that this is equally applicable to many of the expansive grants of power to agencies that amount to little more than admonitions to do whatever they think is in the public interest. The Occupational Safety and Health Administration, for example, is supposed to implement rules “reasonably necessary and appropriate” for protecting workers. That language invites the agency, the authors write, “to make it up as they go along.”

Mark Chenoweth and Richard Samp, both of the New Civil Liberties Alliance, begin their essay by examining the reasons why the Court abandoned the nondelegation doctrine and find none of them convincing. They then propose an “absence of standards” test:

When a statute fails to include any binding standards that limit an agency’s rulemaking authority—but rather lists some goals to which the agency should aspire—Congress should be deemed to have improperly delegated its legislative authority.

Consider President Trump’s imposition of steel tariffs under a statute giving the president authority to mandate tariffs to protect national security. That is so vague, the authors note, that it is impossible for courts to know if the president is or is not acting as Congress authorized.

Boston University law professor Gary Lawson argues that the Court needs to “rediscover” the nondelegation doctrine and finds a strong analogy in the common law of agency. The American people are the principals and have delegated certain tasks to their governmental agents under the Constitution. The Founders were familiar with the law of agency and thus it makes sense to view delegation issues as agency questions. Just as an agent is entrusted with some degree of discretion in carrying out a principal’s directions, so must the executive branch have some discretion in enforcing statutes passed by Congress. Lawson acknowledges that agency law analysis won’t always provide crisp, clear answers, but it would get the courts asking the right questions.

Restoring responsibility / In his essay, law professor Jonathan Adler of Case Western Reserve University points out that when Congress is allowed to get away with delegation of its legislative responsibilities, the effects are bad. It allows the elected representatives to pass the buck on to unelected bureaucrats and then say, “We didn’t do that” if the administrative rules prove to be damaging. Members of Congress are more apt to consider the inevitable tradeoffs of policymaking than are bureaucrats. Adler also points out that telling agencies to base their rules on “science” doesn’t constrain their discretion. As our COVID experience has shown, claims about what science dictates are controversial and, even if not, a fixation on some aspect of science can overlook other factors that need to be considered.

Saikrishna Bangalore Prakash of the University of Virginia Law School seeks to reassure people that the sky will not fall if the Court were to revitalize the nondelegation doctrine. Some on the political left have fretted that if the Court did so, it would lead to chaos, with vast numbers of administrative rules suddenly eliminated. Prakash points out that the courts don’t work that way. They rule on specific cases and precedents and won’t automatically swoop down on agencies to render them powerless. Furthermore, Congress can codify existing rules deemed worth retaining. And looking to the future, Congress will learn to legislate more carefully so that it is making the important decisions, not the bureaucrats.

What about the states and their constitutions? Hillsdale College professor Joseph Postell looks at how they have dealt with the delegation problem. He finds that the courts in several states have been vigilant. For example, in 2013 the Louisiana Supreme Court struck down a statute under which rice growers were taxed to pay for a state marketing scheme, with the assessments decided upon by the growers themselves. The court ruled the legislature cannot delegate its taxing authority to private entities. Postell reports the nondelegation doctrine to be strong in nine states. The Supreme Court might learn something from them.

New York Law School professor David Schoenbrod laments that members of Congress have figured out how they can avoid “high risk votes” by conferring on bureaucrats vague powers to make rules that affect American citizens. The Constitution requires that in Congress each member must vote individually, and the votes must be recorded to prevent lawmakers from dodging responsibility. Allowing delegation, he writes, “guts consent of the governed.” Schoenbrod’s proposal for a judicially manageable approach would be for courts to base their decisions on whether a challenged rule had been declared “significant” by the Office of Information and Regulatory Affairs. Rules found to be significant would not be valid unless adopted by Congress. The current threshold for significance is $100 million, and that would mean that many agency regulations would have to go through Congress.

In his concluding essay, Yoo writes that “favoring a strict nondelegation doctrine test implies greater trust in yesterday’s framers than in today’s judges.” Indeed it does, and the country would be better off if we could somehow get back to our intended separation of powers.