The nondelegation doctrine, unlike most legal concepts, is less boring than it sounds. After the 1930s, it became constitutional esoterica, a relic of a bygone age in which the Supreme Court resisted efforts by Americans to regulate their own economic affairs. But it has the potential to overthrow most of the federal government if wielded in a certain way, and the Roberts court could soon give it startling new relevance.



The doctrine’s puissance lies in the separation of powers. In the American constitutional order, it’s the role of Congress to write the laws and the role of the executive branch to carry them out. The doctrine bars any branch from handing its powers to another branch. Congress can’t pass a bill that gives the president the power to write his own legislation, for example. Nor can the president instruct the military to take orders from the House and Senate Armed Services Committee instead of himself. Sounds simple enough.

For more than a century, however, lawmakers have tackled complex issues of national governance by creating regulatory agencies within the executive branch to address them. Those agencies, empowered with a certain degree of discretion, relieve Congress of the burden of determining which drugs are safe for the marketplace and which pollutants can’t be released into the air or groundwater. This interplay between executive and legislative power might not be exactly what James Madison and Alexander Hamilton had in mind in 1789. But it has nonetheless formed the bedrock for modern American governance.

But the movement to expand the nondelegation doctrine doesn’t seek a healthier relationship between Congress and the administrative state.

Last year, all five members of the Supreme Court’s conservative majority expressed a willingness to revisit the doctrine. It’s tempting to think that the justices might be onto something here. I’ve written extensively in the Trump era about how lawmakers have sometimes given the executive branch too much latitude, particularly when it comes to national security and immigration. But the movement to expand the nondelegation doctrine doesn’t seek a healthier relationship between Congress and the administrative state. Instead, it hopes to roll back the administrative state itself.

The justices called up the nondelegation doctrine from the constitutional minor leagues in 2018, when they agreed to hear Gundy v. United States. At issue was the Sex Offender Registration and Notification Act, or Sorna, which requires people on sex-crime registries to keep their registration current and notify states when they move. Congress gave the attorney general the discretion to determine whether those requirements would apply to people convicted before the law went into effect, which he did. Herman Gundy, who was convicted of sexually assaulting a minor in Maryland, was later convicted of violating Sorna’s requirements because he failed to register in New York.