In recent years, the Supreme Court has increasingly moved to limit the authority of administrative agencies. It has restricted their ability to tackle major economic and political issues, overturned the traditional deference given to agency interpretations, and curtailed their enforcement powers. Against this backdrop, many legal observers anticipate a resurgence of the long-dormant “nondelegation doctrine”—a quasi-constitutional principle that would constrain Congress from delegating its legislative powers to executive agencies or private actors. 

Some commentators believed such a revival had arrived when the Supreme Court granted review of the Fifth Circuit’s opinion in the consolidated cases Consumers’ Research v. Federal Communications Commission and Santander Holdings USA, INC. v. Consumers’ Research. However, following oral arguments on March 26, what initially seemed like a turning point in administrative law now appears more likely to produce a modest ruling grounded in existing precedent. Still, the doctrine is far from dead; in the past five years, five of the Court’s nine justices have indicated they are open to revisiting it—given the right case.

At its core, effective governance relies on institutions that can craft and implement policy. Congress, however, lacks the technical expertise required to legislate with the precision needed to regulate complex areas such as medical devices, food safety, and hazardous waste. For this reason, a strict application of the nondelegation doctrine would be deeply problematic. Congress must retain the ability to delegate detailed policymaking to administrative agencies that possess the specialized knowledge necessary to navigate and manage intricate regulatory frameworks.

At the same time, meaningful limits on legislative delegation are essential to maintaining constitutional accountability. The current legal standard–which requires that Congress provide some “intelligible principle” limiting the agencies’ discretion–has proven in practice to provide no meaningful limit on Congress’ ability to delegate its legislative power. While there may be room to refine the standard used to review such delegations, the emerging “major questions doctrine” already serves as a significant check, preventing Congress from granting agencies unchecked authority over issues of vast economic and political importance.

From New Deal to new scrutiny

Article I of the Constitution assigns “all legislative powers” to Congress, and proponents of the nondelegation doctrine interpret this as a prohibition against Congress transferring its lawmaking authority—despite the absence of explicit language to that effect. This position stems from a dogmatic commitment to the separation of powers that underpins our constitutional framework. 

However, advocates of nondelegation often overlook historical evidence suggesting that the Founders did not intend to forbid all forms of legislative delegation. Legal scholars have found delegations to be “ubiquitous in the early Republic” and “vital to the establishment of a new country—to shore up its finances, to regulate its industry, to govern its nonstate territories, to secure its revenue, and to guard against internal and external threats.” From the onset, detailed lawmaking and delegation have coexisted as integral components of American governance.

The Supreme Court first articulated a nondelegation principle in Wayman v. Southward (1825), where Chief Justice Marshall distinguished between “important subjects” that must be entirely regulated by Congress and “mere details” that could be left to executive discretion. The doctrine later gained prominence during the New Deal era when the Court struck down provisions of Franklin D. Roosevelt’s National Industrial Recovery Act in Panama Refining Co. v. Ryan (1935) and A.L.A. Schechter Poultry Corp. v. United States (1935)—the only two successful nondelegation challenges in Supreme Court history.

For the next eighty years, the Court consistently permitted broad delegations of authority under what became known as the “intelligible principle” test, established in J.W. Hampton, Jr. & Co. v. United States (1928). Under this standard, a delegation is constitutional if Congress provides an “intelligible principle” to guide the agency’s discretion—a test that has proven highly permissive in practice.

Congressional delegation faced renewed scrutiny in Gundy v. United States (2019) when the Supreme Court heard a challenge to the Sex Offender Registration and Notification Act. Although the Supreme Court refused to revive the doctrine, finding that it had “over and over, upheld even very broad delegations” of authority by Congress, Justices Alito, Gorsuch, Thomas, and Roberts all signaled their willingness to reconsider the Court’s permissive approach.

Consumers’ research and the modern court

With a conservative supermajority on the bench, the Supreme Court appears poised to revisit the constitutional limits on Congress’s ability to delegate legislative authority. Consumers’ Research v. Federal Communications Commission seemingly presents a timely opportunity for the Court to do just that. 

The dispute centers on the Universal Service Fund (USF), a program regulated by the Federal Communications Commission (FCC) that ensures telecommunications access for rural and low-income communities. The fund operates through fees on telecommunications carriers, which are calculated by the Universal Service Administrative Company (USAC), a nonprofit entity of industry stakeholders. The Fifth Circuit struck down this “double-layered” delegation—from Congress to the FCC, and then from the FCC to USAC—holding it unconstitutional on the grounds that Congress failed to provide an “intelligible principle” to guide the FCC’s discretion in administering the program.

In reaching its decision, the Fifth Circuit introduced a novel “combined effects” test to evaluate public-private delegations. However, the court did not make determinations on the constitutionality of each delegation separately. Notably, this is not Consumers’ Research’s first challenge to the Universal Service Fund. In earlier cases, both the Sixth and Eleventh Circuits upheld the fund’s constitutionality.

The case has split state governments along unexpected lines. Twenty-two states– including several Republican-led Western states–support the program, while a West Virginia-led coalition has argued that the “intelligible principle” standard has become too permissive of congressional delegations. Meanwhile, a bipartisan group of lawmakers, many of whom oversee the FCC, have defended the program. They acknowledge its imperfections but contend that these “do not erase the Commission’s extensive record of faithfully (and successfully) exercising its delegated authority within the bounds Congress has established.”

As the Court grappled with whether a new judicial standard outside the “intelligible principle” test was needed during March’s oral arguments, the Justices frequently harkened back to Chief Justice Marshall’s acknowledgment in Southward (1825) that “the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.”

Based on the Justices’ questions and comments during oral arguments, the Court appears reluctant to use this case as a vehicle to revive the long-dormant nondelegation doctrine–largely due to the case’s unusual, double-layered structure. Chief Justice Roberts noted that the Fifth Circuit’s reliance on the “combination theory” of delegation was “quite a different” situation from other delegation cases. Justice Alito suggested that even if the Court were to affirm the decision based on this theory, “the problem could be fixed rather readily” by the FCC itself—potentially sidestepping the need to confront broader constitutional issues surrounding legislative delegation.

Justices Barrett and Kavanaugh appeared concerned that deciding against the Government in this case could jeopardize other federal programs and statutes. During oral argument, both Justices pushed back on Consumers’ Research’s assertion that an objective dollar limit on the Fund would meet constitutional standards simply because Congress, not an agency, made the determination. Justice Barret questioned the meaningfulness of such a cap, suggesting it would be arbitrary to “throw out a number for the sake of it.” Meanwhile, Justice Jackson questioned the democratic implications of judicial intervention, asking “whether it is really democracy-enhancing to create a doctrine that, at least in this case, would allow judges to strike down this very popularly enacted law.”

While this particular case presents an unusual delegation structure and raises a procedural question about mootness—factors that make it a weak vehicle for revisiting the delegation doctrine—it comes at a time when the dynamics between the branches of government are far from ordinary. President Trump’s recent deregulatory executive order requiring agencies to identify regulations to rescind or modify “based on unlawful delegations of legislative power” signals that restructuring agency authority remains a key priority of this administration—one that is unlikely to fade regardless of the Court’s ruling in this case.

On the other hand, President Trump’s use of tariffs against nearly every nation, premised on a strained reading of Presidential authority under the International Emergency Economic Powers Act of 1977 (IEEPA), raises important questions about what “intelligible principle” limitsCongress’ delegation of legislative power to the President under the President’s novel interpretation of the IEEPA. 

Balancing constitutional principles and practical necessity

Critics argue that excessive delegation has diluted accountability by distancing decision-making from elected representatives. This criticism holds some weight, and some have suggested regular reauthorization of delegated authority to strengthen the partnership between Congress and administrative agencies.

Nevertheless, delegation remains both complementary to and often essential for effective governance. Even the Fifth Circuit majority acknowledged that “…in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Courts have consistently recognized a need for flexibility in implementing the law and have upheld delegation in areas requiring industry expertise and flexibility.

Delegations are, for this reason, ubiquitous across government. Congress empowered the Environmental Protection Agency to issue air quality standards “requisite to protect public health,” gave the FCC the authority to regulate broadcast licensing in the “public interest,” and even allowed the Office of Price Administration to fix “fair and equitable” commodity prices during wartime.

Even public-private delegations, such as the FCC’s delegation to the USAC, are not uncommon. Federal agencies frequently rely on the expertise of private entities to implement federal policies. The Energy Policy Act of 2005 gives the North American Electric Reliability Council, a nonprofit designated as North America’s “Electric Reliability Organization,” authority to develop and enforce reliability standards under the Federal Energy Regulatory Commission’s oversight. Reviving the nondelegation doctrine could prompt a reevaluation of these regulatory frameworks and their statutory schemes. If this revival succeeds, it will reshape the federal government’s capacity to execute critical policy initiatives.

The tension between delegation and effective governance is particularly relevant in today’s regulatory landscape. While the administrative state plays an important role in modern governance, delegation requires meaningful boundaries to ensure accountability. Wolfson and Jones note that “expansive deference fundamentally erodes the separation of powers by weakening legislative and judicial checks against the executive branch,” encouraging vague bill writing and regulatory overreach. Historical comparison clarifies this balance: Roosevelt built state capacity through proper congressional channels—enabling the government to “implement complex tasks while keeping electoral politics at arm’s length”—while today’s approach often bypasses Congress through executive action. The New Deal’s carefully structured delegations facilitated wartime mobilization and decades of prosperity, establishing programs that remain economic pillars. While unchecked delegation can erode accountability and constitutional safeguards, overly restrictive constraints would undermine the government’s problem-solving capacity when complex challenges demand effective governance.

The challenge is particularly pressing given that the federal government is already struggling with a capacity crisis. With a civilian workforce of just 2.1 million employees (as of 2021) already stretched thin, agencies face mounting challenges meeting their expanded responsibilities—a situation expected to worsen following the Trump Administration’s mass firings of federal workers in 2025. The demographic challenge only exacerbates this issue:over a third of federal workers are currently eligible for retirement, while only 6.8 percent are under age 30 (compared to 20 percent in the overall workforce). This workforce shortfall directly hinders the government’s ability to effectively implement programs and respond to public needs, highlighting the critical importance of both delegation and proper oversight.

If courts begin to scrutinize delegations more carefully, all three branches of government would need to adjust. Rather than relying on broad, ambiguous delegations, Congress could craft more detailed legislation while still allowing for necessary administrative flexibility. A more nuanced nondelegation doctrine might encourage Congress to reclaim its constitutional lawmaking responsibilities while recognizing areas where agency expertise remains valuable.

For executive agencies, the implications would require thoughtful recalibration. The current practice of the FCC outsourcing regulatory functions—including rulemaking and ratemaking—to external contractors raises serious concerns about democratic accountability and regulatory capture. A 2020 study from the Brookings Institution estimates that in the government’s blended workforce, there are approximately two contractors for every one federal employee. This underscores a central challenge of modern governance: upholding constitutional boundaries while enabling agencies to draw on external expertise when necessary. A balanced approach to the nondelegation doctrine could help clarify the limits of permissible delegation, while still preserving the flexibility Congress has deliberately built into complex regulatory frameworks.

The judicial branch would arguably face the most complex implementation challenge. With approximately 850 judges across the federal judiciary, courts would be tasked with evaluating delegation arrangements in a way that balances constitutional constraints with the practical realities of modern governance.Given the diversity of judicial philosophies regarding administrative power, crafting consistent, principled doctrines that offer both predictability and room for context-specific analysis will be crucial. Such an approach would help reduce disruptive circuit splits while enabling the judiciary to fulfill its constitutional role as a check on legislative and executive overreach.

A path forward

While Consumers’ Research appeared likely to redefine the boundaries of Congressional delegation, oral arguments suggest it may not be the vehicle for significant doctrinal change. Nevertheless, the underlying tensions between effective governance and constitutional constraints remain unresolved, as does the perception that agencies wield too much unchecked authority over policymaking.

Fostering pervasive skepticism of regulatory activity addresses neither our governance needs nor constitutional concerns—it merely frustrates the government’s ability to function effectively. As legal scholar Nicholas Bagley observes: “When we read into the spare text of the Constitution some kind of distaste for agencies — because they wield “too much” power because they blend functions, or because they’re too insulated from the public will — we are projecting our own anxieties onto a document that does not share them.” 

Effective governance depends on a capable and responsive state. The success of the New Deal was not rooted in bypassing Congress, but in engaging it—channeling legislative will into bold, coordinated action. Perhaps the path forward lies not with the courts but in thoughtful institutional renewal: a reinvestment by Congress in the craft of legislating, and a commitment by the executive to rebuild the capacity of a civil service that has been steadily eroded over decades. By adopting a balanced approach to legislative delegation, we can preserve the flexibility needed to govern in a complex world while ensuring that government remains both democratically accountable and equipped to meet the challenges Americans face today.