July 14, 2026

THE KEEPING OF IT:

Nondelegation Without Chaos (John O. McGinnis, 11/03/25, Law & Liberrty)

If one theme unites the Roberts Court’s work in administrative law, it is a counter-reformation that recenters the Constitution’s basic architecture for the administrative state. Congress is to legislate; the president and his subordinates are to execute within a hierarchical, accountable executive; and courts are to exercise independent judgment in interpreting the laws. That settlement, grounded in the Constitution’s Vesting Clauses, animates a series of linked doctrines returning power to the institutions to which the Court believes the Constitution originally entrusted it.

The Roberts Court’s vision for the separation of powers points toward a stricter nondelegation doctrine. Delegation is Congress’s practice of permitting agencies to regulate conduct under broad authorizations that allow the executive substantial policy choice. These delegations have included authority to regulate in the “public interest” without further defining that term or directions to an agency to pursue an objective stated at a high level of generality, such as promoting public health, without indicating how much harm is consistent with protecting the public health. Such broad delegation threatens to make the executive the lawmaker by giving over to that branch the essential policy choices the Constitution entrusts to Congress. […]

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.