DELEGATION IS ANTI-CONSTITUTIONAL:
The Role of Delegation Theories in Deforming the Constitution (Tom Merrill | 3.4.2026, reason)
The case against delegation rests on the proposition that the Constitution, in the first sentence of Article I, gives “[a]ll legislative Powers” to Congress. One would therefore assume that sensitivity to delegation would be at its height when the President or some regulatory agency claims the power to issue so-called “legislative rules”—regulations that have a force and effect similar to that of a statute. At one time, the courts were very cautious about such delegations, and said they would refuse to recognize agency rules having the force of law unless they were explicitly authorized by Congress.
More recently, however, the Court has adopted something of the opposite presumption: that any statute that mentions “rules” or “regulations”—even if this could plausibly mean housekeeping or procedural rules—also includes the authority to issue legislative regulations, that is, rules that are functionally equivalent to mini-statutes. This newer presumption, which has never been justified by the Court in any considered decision, has the effect of permitting the transfer of lawmaking authority from Congress (whether this was intended or not) to administrative actors and the President.
As should be obvious, the unstated assumption that any reference to rules means authority to make binding legislative regulations has resulted in an enormous transfer of legal authority from Congress to the Executive.