What Is the Nondelegation Doctrine?
The nondelegation doctrine is the constitutional rule that Congress may not transfer its lawmaking power to the executive branch, and Article I vests all legislative powers in Congress while Article II charges the president with executing the laws agencies now routinely write. When agencies write rules that bind Americans with the force of law, they exercise legislative power without a legislative process. The doctrine is supposed to stop that. It has been dormant for nearly a century.
The classic formulation comes from Wayman v. Southard in 1825. Chief Justice John Marshall allowed Congress to delegate fact-finding and ministerial details, but not the power to establish general rules. The Court sharpened the test in 1928, requiring Congress to provide an "intelligible principle" to guide the agency. That phrase survives. But the enforcement does not.
Why Did the Doctrine Fade?
The Court abandoned meaningful enforcement of the nondelegation doctrine in 1935 and effectively buried it during the New Deal, allowing Congress to pass vague statutes and delegate the details to alphabet agencies like the EPA, SEC, and ATF instead of writing specific rules itself. The Clean Air Act, the Securities Exchange Act, and the Affordable Care Act all contain open-ended instructions that agencies have turned into thousands of pages of binding rules. The Court has occasionally trimmed agency power, but it has never required Congress to make the actual policy choices.
The numbers are staggering. The Code of Federal Regulations contains more than 180,000 pages. Federal agencies issue between 3,000 and 4,500 final rules each year, while Congress passes only 200 to 400 statutes annually, according to the Congressional Research Service. The ratio is roughly ten to one. Most law in America is not written by legislators. It is written by unelected staffers at the Department of Health and Human Services, the Department of Labor, and the Environmental Protection Agency.
This is not a partisan complaint. Republican administrations use the same delegations. But conservative legal theory has now supplied the tools to reverse the arrangement. The question is whether the Court has the courage to use them.
What Changed in 2024?
In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron v. Natural Resources Defense Council and held that courts must decide legal questions for themselves rather than defer to agency interpretations. That 6-3 decision stripped agencies of their automatic judicial advantage. It did not, however, stop Congress from handing agencies blank checks in the first place. Nondelegation is the next frontier.
Justice Clarence Thomas has spent years calling for a revival. In Department of Transportation v. Association of American Railroads in 2015, he wrote separately to argue that the modern administrative state is unconstitutional root and branch. Justice Neil Gorsuch joined him. Justice Brett Kavanaugh has signaled sympathy. With the current composition of the Court, the votes may finally exist to do something more than grumble.
What Cases Are Now Pending?
Several petitions before the Court in June 2026 ask the justices to enforce the nondelegation doctrine directly, including challenges to the SEC's crypto authority, the EPA's power to shift electricity generation, and the ATF's pistol-brace rule across energy, firearms, and securities law. Each case asks the same question: who makes the law?
The SEC case is especially ripe. The commission has sued dozens of crypto firms since 2023 under a legal standard last clarified by the Supreme Court in SEC v. W. J. Howey Co. in 1946. Rather than write a rule defining when a digital asset is a security, the agency has relied on individual enforcement actions. That approach gives regulated parties no clear notice and lets the commission pick winners and losers.
The EPA case matters for energy independence. The agency's Clean Power Plan 2.0 proposal would require utilities to shift generation away from coal and natural gas toward wind and solar. The Supreme Court stayed the earlier version in West Virginia v. EPA in 2022, holding that Congress had not clearly authorized a generation-shifting scheme. A nondelegation ruling would go further and require Congress to make that policy choice itself.
Why Should Conservatives Care?
Conservatives have spent decades complaining about unaccountable bureaucrats, and the nondelegation doctrine is the remedy because it forces Congress to vote on specific policies, restores the separation of powers, and gives voters someone to fire when a rule hurts their business or community. The alternative is rule-by-regulation, where elected officials hide behind agency staffers and pretend they had nothing to do with the damage.
There is also a practical benefit. Narrow delegations produce better law. When Congress must specify the standard, the text is clearer. Courts can enforce it. Citizens can comply with it. Broad delegations produce vague commands, constant litigation, and unpredictable enforcement. The country spends an estimated $2 trillion annually on regulatory compliance, according to the Competitive Enterprise Institute. Much of that cost comes from uncertainty, not from the rules themselves.
The Bottom Line
The Court should take one of these cases and announce a clear rule requiring Congress to supply an intelligible principle when it delegates authority, and that principle must meaningfully constrain the agency instead of authorizing open-ended policymaking by unelected officials. Anything less preserves the administrative state that the Founders rejected. The Alamo Post will continue to cover the Court's work because constitutional structure is not an academic hobby. It is the architecture of liberty.
The June 2026 term could be remembered as the moment the Court finished the job it began in Loper Bright. Or it could be remembered as another missed opportunity. The justices have the doctrine, the cases, and the votes. What they need now is the will.
