The Nondelegation Doctrine, a long-dormant legal principle, is poised to potentially reshape the landscape of U.S. governance by limiting the power of federal agencies. This obscure doctrine could render it nearly impossible for the government to create new laws and regulatory rules aimed at protecting the American populace. The doctrine asserts that the U.S. Constitution prohibits Congress from delegating its legislative powers to federal agencies, thereby restricting these agencies from making their own rules.
The last significant application of this doctrine occurred nearly a century ago during the 1930s. It was a period marked by President Franklin Delano Roosevelt's New Deal, which introduced numerous government programs and agencies. Supporters of the Nondelegation Doctrine argue that it reallocates power back into the hands of the public by preventing unelected officials within federal agencies from forming rules. However, critics describe this argument as a "bad faith" attempt, citing the difficulty Congress faces in passing laws without a pressing crisis.
Opponents of the doctrine emphasize that the Constitution allows Congress to enact laws and delegate the detailed implementation process to federal agencies, albeit with certain limitations. If revived, the Nondelegation Doctrine could invalidate significant portions of foundational American laws and protections established since the inception of Congress. It could also alter the power dynamics between the three governmental branches, increasing judicial authority.
In recent years, conservative justices have shown interest in possibly reviving this doctrine. Proponents suggest that this would compel Congress to fulfill its role by drafting legislation with more specific details. Critics, however, argue that such specificity is improbable in today's highly partisan and contentious political environment.
“It just depends on how radical they want to go.” – Daniel Farber
The doctrine's potential revival is seen by some as an extreme power grab by unelected right-wing judges. It could embolden conservative lower court judges, complicating efforts by the government to develop new laws and regulations. One significant case that may address this doctrine is FCC v Consumers' Research, which challenges the Federal Communications Commission's (FCC) authority to impose fees covering broadband and telecommunication services in rural and low-income areas.
“There are versions of the nondelegation doctrine that could be deployed to strike down a lot of the laws that protect Americans on everything that matters to them.” – Michael Wall
“There would be constitutional challenges to large portions of the government’s work.” – Michael Wall
If the Nondelegation Doctrine is revived, nearly every aspect of governance could face challenges. This would include consumer protections, pollution limits, social security, food safety standards, clean water regulations, sex offender laws, Medicare, and union protections.
“This is really just a backdoor to deregulate everything.” – Daniel Farber
The doctrine's revival could trigger widespread deregulation across various sectors. As Daniel Farber notes, conservative judges might begin overturning environmental laws and other regulations that do not align with their ideological preferences.
“As someone else said, conservative lower court judges have partied like it’s 1899, and they would start striking down every environmental law or whatever that they don’t like.” – Daniel Farber