What Did the Founders Mean by All Legislative Powers?
The Framers placed the lawmaking power in a bicameral Congress because they feared concentrated authority, and Article I, Section 1 assigns all legislative Powers herein granted to that elected body, a textual choice the Supreme Court in 1932 described as a principle of broad significance before the New Deal relaxed it. James Madison warned in Federalist No. 47 that the accumulation of all powers legislative, executive, and judiciary in the same hands may justly be pronounced the very definition of tyranny. That warning was not poetry. It was a structural rule.
And yet the rule has been honored mostly in the breach. Today, Congress passes statutes that run thousands of pages, then tells agencies to write the details. The result is lawmaking without elections. Agencies answer to the president indirectly and to voters almost never. A regulation can shutter a business, strip a property right, or criminalize conduct without a single representative voting on the precise text. The Constitution never authorized that transfer. The people who tax and bind us should be the people we can fire at the ballot box.
How Did the Regulatory State Escape Those Limits?
The escape began with two Supreme Court decisions that blessed open-ended statutes and let the executive branch fill the blanks Congress left behind, starting with a 1928 tariff case that gave the president discretion to set rates. The Court briefly pushed back in 1935, then retreated almost entirely. After 1937, the justices treated broad delegations as constitutional so long as Congress supplied an intelligible principle, a standard so elastic that nearly anything qualified. The phrase became a rubber stamp.
The consequences are visible in the Code of Federal Regulations, which reached roughly 185,000 pages by 2023. According to the Office of the Federal Register, federal agencies issued more than 3,300 final rules that same year. The Congressional Research Service has cataloged dozens of statutes containing phrases like the Secretary shall promulgate regulations or the Administrator may by rule determine, language that delegates the hard choices while Congress keeps the political credit. The Supreme Court's 2024 decision in Loper Bright Enterprises v. Raimondo corrected one piece of this puzzle by ending judicial deference to agency interpretations of law. But deference to agency lawmaking is the deeper disease.
Chief Justice Roberts, writing for the majority in West Virginia v. EPA in 2022, reminded agencies that Congress must speak clearly when authorizing an agency to exercise powers of vast economic and political significance. That major questions doctrine is useful. It is not enough. The Court has not struck down a delegation as unconstitutional since 1935. Eighty years of abstention have taught Congress that vagueness is a feature, not a bug.
Why Should Ordinary Citizens Care?
Because the rules that shape daily life are written by people who never face a voter, from Environmental Protection Agency officials to Occupational Safety and Health Administration regulators, and those rules affect trillions of dollars in investment. The Securities and Exchange Commission tried to mandate corporate climate disclosures in 2024 far beyond any statute Congress passed. These decisions affect trillions of dollars in investment, millions of jobs, and the price of energy in every state.
When Congress avoids specifics, accountability disappears. A representative can claim to support clean water while letting the agency write the definition. A senator can vote for affordable housing and then blame a bureaucracy for the permit denials. The game is old. Voters lose. The Cato Institute estimated in 2024 that federal regulation imposes costs of roughly $1.9 trillion annually, a burden larger than the gross domestic product of all but a handful of countries. That is not abstract. It is the price of breakfast, the cost of a home, and the reason a small business cannot hire.
Can the Court Still Draw a Line?
Yes, but only if the Supreme Court revives the nondelegation doctrine rather than merely limiting Chevron deference, as Justice Gorsuch argued in his 2019 dissent in Gundy v. United States, where he insisted that agencies may apply rules but not create them. Agencies have no constitutional warrant to legislate. That distinction fits the original design. Lawmaking sets policy. Adjudication applies it. The Constitution separates those functions.
Lower courts could begin asking harder questions. Does the statute set a standard that is truly intelligible? Or does it hand the agency a blank check? If the latter, the provision should be severed or the agency action vacated. The alternative is permanent government by emergency waiver and guidance document. Americans deserve to know who wrote the rule that closed their restaurant, denied their permit, or seized their account. The answer should be an elected representative, not a career official quoting a statute no one voted on. June gives the justices a chance to say so.
