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Note: The U.S. Supreme Court has ruled 6 to 3 that the Biden administration cannot move forward with its coronavirus vaccine-or-test requirement for large workplaces. Justice Neil M. Gorsuch’s concurrence centered on an arcane legal principle called the “nondelegation doctrine.” We are reposting this article, which originally ran on Oct. 29, because it explains the implications of this doctrine.

The Supreme Court on Oct. 29 agreed to hear a challenge to the Environmental Protection Agency’s authority to regulate power plant emissions, in a case that legal scholars say could undermine Congress’s constitutional authority to delegate power to federal agencies. Some argue that such regulation — not just by the EPA, but in President Biden’s vaccine mandate as well — is unconstitutional because of a somewhat arcane legal doctrine called the “nondelegation doctrine.” This theory holds that Congress cannot delegate broad policymaking authority to government agencies.

Why does this argument matter? Our research finds that if the Supreme Court were to invalidate either the EPA’s authority or the vaccine mandate under this doctrine, it might unravel nearly every major law Congress has passed since World War II. Nearly every one of these laws involves delegating authority to U.S. agencies.

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Abstract

Delegation is a well-known feature of policymaking in separation of powers systems. Yet despite the importance of this activity, there is little systematic evidence about how many major laws in the United States actually delegate policymaking authority to administrators in federal agencies. Using a database of agency regulatory activity along with text searches, we examine significant US federal enactments from 1947 to 2016 to see which of these laws delegate to agencies. We find that nearly all major laws—more than 99 percent—contain delegation. We also find that the number of agencies receiving delegation in each law has increased over time.

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Nondelegation Doctrine

Overview

The non-delegation doctrine is a principle in administrative law that Congress cannot delegate its legislative powers to other entities. This prohibition typically involves Congress delegating its powers to administrative agencies or to private organizations.

In J.W. Hampton v. United States, 276 U.S. 394 (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an "intelligible principle” on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation.

In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Supreme Court held that "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested."

Quote (addone @ Jan 14 2022 10:52am)

95% of NPCs here wont understand any of this

Quote (sirthom @ Jan 14 2022 06:05am)

I wish.
But this is never going to happen...without force.

Quote (RedFromWinter @ Jan 14 2022 08:42am)

It can happen, and quickly, revo war was only ~250 years ago. Most everyone has an illusion of superiority bias in the US. Kind of like the unsinkable Titanic.

Quote (NetflixAdaptationWidow @ Jan 14 2022 02:14pm)

Pretty dumb. Our system is not set up to allow the legislature to make rules about every little thing.

Just another way the supreme court has become a failure of an institution in the past ~20 years or so. It was the last branch to fall, but fall it has.