Restoring the Nondelegation Doctrine.

• Author: Leef, George
• Position: The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine

The Administrative State Before the Supreme Court

Edited by Peter J. Wallison and John Yoo

390 pp.; American Enterprise Institute Press, 2022

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...