A LITTLE CHAOS IS WORTH A CONSTITUTIONAL ORDER:
Nondelegation Without Chaos : As the Supreme Court works to restore the separation of powers, it should seek a return to the Framers’ vision rather than an outright revolution. (John O. McGinnis, 11/03/25, Law & Liberty)
The Framers recognized that the legislative power was the most important of all the powers delegated in the Constitution, because it was the only federal authority that could directly affect their domestic liberty. Legislative power—prescribing rules that bind private conduct—belongs only to Congress, and for good reasons. That assignment channels lawmaking through a deliberative, laborious, publicly accountable process. Justice Neil Gorsuch’s dissent in Gundy v. United States articulates this structure crisply: Congress must make the policy decisions; the executive may “fill up the details” or find facts that trigger rules Congress has created. That is the Constitution’s path to stable rules, fair notice, and political accountability.
While I cannot fully defend the originalist case for limiting the delegation doctrine here, my frequent co-author, Michael Rappaport, does so in “A Two-Tiered and Categorical Approach to the Nondelegation Doctrine,” proposing a two-tier framework. For domestic regulation of private rights—most of the stuff of administrative law—he proposes a categorical bar on delegating policymaking discretion. In contrast, he proposes a more lenient standard where history and structure counsel executive flexibility, as in appropriations, foreign and military affairs, and territorial governance. He grounds the strict rule for domestic regulatory affairs in text, history, and structure—especially the private/public rights distinction and James Madison’s insistence that laws provide details, definitions, and rules. The executive in the strict tier is limited to genuine interpretation, fact-finding, and application. On this view, the current doctrine abdicates Congress’s duty precisely where liberty most requires legislative judgment.