—Dr. Lorenz Dopplinger, Postdoctoral Researcher and Lecturer, University of Vienna, Austria
Executive lawmaking forms an integral part of the modern American state. Today, most laws of general applicability are not enacted directly by Congress but by agencies through regulations. In recent years, however, the administrative state has faced mounting (political and legal) pressure. The Supreme Court has eroded its foundations by, for example, eliminating judicial deference to agency interpretations of statutes and subjecting administrative action to heightened judicial scrutiny. Many critics of the administrative state view these measures only as first steps. Their ultimate goal is to curtail Congress’s broad grants of lawmaking authority to administrative agencies. In doctrinal terms, that effort has focused on reviving the long-dormant nondelegation doctrine, which forbids Congress from delegating its legislative power but has remained toothless in the Court’s jurisprudence since 1935. Several justices have recently signaled their readiness to breathe new life into the doctrine.
An opportunity arrived when the Court of Appeals for the Fifth Circuit struck down the universal-service contribution scheme of the Telecommunications Act of 1996 as unlawful delegation of revenue-raising authority to the Federal Communications Commission (FCC) and the Universal Service Administrative Company. But in a move that surprised observers and disappointed critics of the administrative state, the Supreme Court reversed the Fifth Circuit’s decision in FCC v. Consumers’ Research in June 2025 with a 6-3 vote. Writing for the Court, Justice Elena Kagan forcefully reaffirmed the deferential stance of prior jurisprudence and upheld the statutory delegation as constitutionally permissible. Kagan’s opinion was not only joined by the “liberal” justices, but also by Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett.
However, this ruling should not be mistaken for a turning point in the Court’s critical approach towards administrative governance. On the contrary, it is a reflection on how far its remaking of American administrative law has already progressed. Over the last years, the Court has developed alternative doctrinal tools that serve similar purposes. These innovations appear to have reduced the appetite among key justices for pursuing a nondelegation revolution, at least for now. Accordingly, although the spectacular revival of the nondelegation doctrine failed to materialize, the judicial weakening of the administrative state will continue.
Delegation in the U.S.
From a transnational perspective, the U.S. approach to delegated legislation may appear puzzling. At first glance, its nondelegation doctrine seems very strict. According to Article I of the Constitution, “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States”. The Supreme Court understands this clause as barring Congress “from transferring its legislative power to another branch of Government”. “Legislative Power”, the Court emphasizes, “belongs to the legislative branch, and to no other” – formally, its delegation is absolutely prohibited. In practice, however, U.S. administrative law has long featured broad statutory delegations that grant agencies wide discretion to promulgate rules with the force of law. In this sense, agencies are effectively allowed to legislate, and they do so extensively.
The Supreme Court manages this apparent tension through the “intelligible principle” test: As long as Congress supplies an “intelligible principle” to guide the exercise of agency discretion, rulemaking authorizations are not treated as an impermissible delegation of legislative power, but rather as a permissible conferral of executive power. The “intelligible principle” requirement has been interpreted very leniently. For example, the Court has upheld delegations to regulate in the “public interest”, to set “fair and equitable” prices and “just and reasonable” rates, and to issue air quality standards at levels “requisite to protect the public health”. Only twice has the Supreme Court struck down a statute for excessive delegation, in each case because “Congress had failed to articulate any policy or standard” to limit the discretion of the executive. Furthermore, these two cases are confined to a very specific historical context. Both are from 1935 and concern early New Deal legislation. Since then, the nondelegation doctrine has remained formally alive, but functionally dormant, a “paper tiger”. As Cass R. Sunstein quipped in 2000, the doctrine “has had one good year, and 211 bad ones (and counting)”.
From a German or Austrian perspective, these low bars for delegations are remarkable: In Germany, the constitution explicitly requires statutes to define the “content, purpose and scope” of rulemaking powers delegated to the executive (Art. 80 para. 1 Basic Law). Statutory authorizations must substantively predetermine delegated legislation with sufficient specificity. Moreover, “essential” matters have to be set out by the legislature itself and cannot be left to the executive (Wesentlichkeitsgrundsatz). The situation is similar in Austria: The legislature must substantively predetermine delegated legislation and is prohibited from granting broad, ill-defined powers that would allow the executive to usurp its role. Accordingly, the authorizing statute must delineate the essential features of delegated legislation.
For critics of the administrative state, the low bars for delegation in the U.S. have long been a major concern. They regard the toothless nondelegation doctrine as “the most important single reason that the administrative state has continued to grow out of control”.Curtailing that growth has been a defining aim of the conservative legal movement.
A Window of Opportunity: Gundy Sets the Stage
The Supreme Court’s last major case on the nondelegation doctrine came in 2019 with Gundy v. United States. Gundy set the stage for today’s debate. The case concerned a provision of the Sex Offender Registration and Notification Act (SORNA) that authorized the Attorney General to “specify the applicability” of the statute’s registration requirements to offenders convicted before the statute’s enactment, as well as to “prescribe rules for the registration of any such sex offender”.
The Court upheld the delegation as constitutional in a plurality opinion written by Justice Kagan. Reaffirming the Court’s traditionally lenient standard, Kagan concluded that SORNA satisfied the “intelligible principle” test. The significance of Gundy, however, lay less in Kagan’s plurality than in the opinions that followed.
In an emphatic and extensive dissent, Justice Neil Gorsuch called on the Court to adopt a stricter version of the nondelegation doctrine. He argued that the modern version of the “intelligible principle” test had no basis in the Constitution and had allowed clearly excessive delegations. Rather, Congress was only permitted to authorize the executive to “fill up the details” within a statutory framework and to enlist its assistance in fact-finding. Under this standard SORNA’s delegation was patently unconstitutional. Chief Justice Roberts and Justice Clarence Thomas joined Gorsuch’s dissent.
Justice Samuel Alito concurred only in the judgment. In this way, he on the one hand deprived Kagan’s opinion of a majority and on the other hand avoided an equally split Court, which would have resulted in an affirmance of the lower court’s decision without published opinions of the Supreme Court. Alito made clear that, although he did not believe Gundy warranted invalidating SORNA under existing precedent, he was willing to fundamentally revisit the Court’s nondelegation jurisprudence in a future case. His opinion read as an open invitation to challengers.
Justice Kavanaugh did not participate in Gundy, because he joined the Court only after oral argument. But he later signaled sympathy for a stricter doctrine, praising Gorsuch’s dissent as a “scholarly analysis” that “may warrant further consideration in future cases”. When Justice Barrett succeeded Justice Ruth Bader Ginsburg in 2020, cementing a conservative supermajority, the Supreme Court seemed poised to recalibrate the nondelegation doctrine. With Gorsuch, Thomas, and Roberts already on board, and with Alito and Kavanaugh expressing interest, one could expect at least five, and perhaps six, votes for a doctrinal shift once the right case arose.
Alternative Tools to Constrain Administrative Power Emerge
The anticipated nondelegation revolution, however, did not immediately materialize. Instead, the Court developed alternative tools to constrain administrative power.
In 2022, the Court established a new “major questions doctrine”, which has been described as a “powerful weapon wielded against the administrative state”. At its core, it provides that agencies may make “major policy decisions” only when Congress has expressly and specifically authorized them to do so. As mentioned above, from a German or Austrian perspective, this may sound unremarkable. In the U.S., however, the implications are explosive, as broad, open-ended delegations have long been a characteristic feature of U.S. administrative law. Under the major questions doctrine, such delegations suddenly lose much of their force. If they can no longer serve as a basis for significant regulatory action, agencies risk paralysis in the face of many pressing challenges, unless and until Congress reworks existing statutes. In short order the Court invoked the doctrine to strike down several high-profile measures, including an EPA regulation requiring power plants to shift from coal to lower-emission fuels, OSHA’s rule mandating vaccines for employees of large companies, and the Secretary of Education’s program broadly forgiving federal student loan debt.
The Court did not stop there. In 2024, it also eliminated Chevron deference, ending four decades in which agencies had enjoyed authority to resolve statutory ambiguities subject only to judicial review for reasonableness. In Loper Bright Enterprises v. Raimondo, the Court overruled Chevron, asserting the power of the judiciary to “say what the law is”. In this way, the Court claimed for itself the authority to precisely define and strictly police the boundaries of administrative competences.
Together, these developments may explain why the Court in FCC v. Consumers’ Research was less eager to revive a strict nondelegation than suggested by the signals sent in Gundy and the following momentum. Justice Kavanaugh, holding one of the critical votes, made this connection explicit in his concurrence, noting that “[m]any of the broader structural concerns about expansive delegations have been substantially mitigated by this Court’s recent case law in related areas.”
These new doctrines, particularly in combination, accomplish much of what a stronger nondelegation principle would have achieved, but by subtler means. This offers certain advantages. Rather than striking down broad statutory delegations as unconstitutional, the Court can interpret them narrowly and thereby find that they do not authorize the agency action in question. This allows the Cort to curb agency action while leaving the statutes themselves intact, thus avoiding direct conflict with Congress. This strategy also enables the Court to proceed incrementally, statute by statute, without having to formulate sweeping constitutional rules. Moreover, by framing its decisions as exercises in statutory interpretation rather than constitutional verdicts, the Court cloaks them in a more technical, restrained guise. Finally, this approach lets lower courts do most of the work of policing congressional grants of agency power, while the Supreme Court intervenes only occasionally.
This dynamic may also explain why Chief Justice Roberts, who sided with Gorsuch in Gundy, shifted course in FCC v. Consumers’ Research. His (occasional) “institutionalist streak” – concern for the Court’s legacy and legitimacy – fits comfortably with a statutory-interpretation approach, which deflects criticism away from the Supreme Court justices who are already increasingly perceived as “politicians in robes”.
There is, of course, a potential drawback to this approach if the aim is to permanently constrain the administrative state. Operating at the statutory level leaves open the possibility that Congress amends statutes to reassert agency authority. In practice, however, that prospect is often remote. Unlike in parliamentary systems such as Austria or Germany, where governing majorities can, in general, readily revise statutes, the American separation-of-powers system makes legislation difficult by design. Under current conditions of extreme political polarization, the numerous “vetogates” in the U.S. legislative process translate into persistent gridlock. Accordingly, meaningful reform of older administrative statutes is often exceedingly difficult. In this way, even the theoretical disadvantage of the statutory-interpretation approach may ultimately function as an advantage: The Court can curb agency power without having to assume ultimate responsibility for incapacitating the administrative state.
Outlook
Although the Supreme Court has set aside a full-scale nondelegation revolution for now, it has already reshaped the foundations of American administrative law along “anti-administrativist” lines. Through statutory interpretation, the Court can gradually undermine the administrative state while avoiding the institutional risks of sweeping constitutional change. The message to agencies is nonetheless clear: Their authority will face close judicial scrutiny, especially when making major policy decisions. Ultimately, this sub-constitutional transformation of American administrative governance may prove as consequential as a revived nondelegation doctrine.
Suggested citation: Lorenz Dopplinger, Nondelegation Nonrevolution: How the U.S. Supreme Court Chose Statutory Interpretation Over Constitutional Upheaval to Recalibrate the Balance of Powers, Int’l J. Const. L. Blog, Sept. 23, 2025, at: http://www.iconnectblog.com/nondelegation-nonrevolution-how-the-us-supreme-court-chose-statutory-interpretation-over-constitutional-upheaval-to-recalibrate-the-balance-of-powers/
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