Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The nondelegation doctrine is rooted in certain separation of powers principles.1 In limiting Congress’s power to delegate, the nondelegation doctrine exists primarily to prevent Congress from ceding its legislative power to other entities not vested with legislative authority under the Constitution. As interpreted by the Court, the doctrine seeks to ensure that legislative decisions are made through a bicameral legislative process by the elected Members of Congress or governmental officials subject to constitutional accountability.2 Reserving the legislative power for a bicameral Congress was “intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps.” 3

The nondelegation doctrine, however, does not require complete separation of the three branches of government, and its continuing strength is the question of much debate.4 In its nondelegation jurisprudence, the Supreme Court has recognized the need and importance of coordination among the three branches of government so long as one branch does not encroach on the “constitutional field” of another branch.5 The nondelegation doctrine seeks to distinguish the constitutional delegations of power to other branches of government that may be “necessary” for governmental coordination from unconstitutional grants of legislative power that may violate separation of powers principles.6

Footnotes

1

See Loving v. United States, 517 U.S. 748, 758 (1996) ( “Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties.” ). For discussion of the separation of powers, see Intro.7.2 Separation of Powers Under the Constitution.

2

See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 959 (1983) ( “There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.” ) (citations omitted). See also Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 61 (2015) (Alito, J., concurring) ( “The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution’s deliberative process was viewed by the Framers as a valuable feature, not something to be lamented and evaded.” ) (citations omitted); Indus. Union Dep’t, AFL-CIO v. API, 448 U.S. 607, 687 (1980) ( “It is the hard choices, and not the filling in of the blanks, which must be made by the elected representatives of the people. When fundamental policy decisions underlying important legislation about to be enacted are to be made, the buck stops with Congress and the President insofar as he exercises his constitutional role in the legislative process.” ).

3

Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 957–58 (1983).

4

Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).

5

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).

6

Id. at 406. See also Chadha, 462 U.S. at 944 ( “[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.” ).