—Alemayehu Fentaw Weldemariam, Fellow at the Center for Constitutional Democracy, Indiana University Maurer School of Law
The nondelegation doctrine reveals a striking divergence within American constitutional law. At the federal level, the doctrine has largely receded into symbolic status. At the state level, by contrast, it remains doctrinally meaningful and, in some jurisdictions, actively enforced. The difference is not about hostility to the administrative state. It reflects a deeper disagreement about what legislative power is — and what it requires.
Federal doctrine increasingly treats legislative power as authorization. State doctrine, at its most serious, treats legislative power as responsibility.
The Federal Retreat
Article I of the United States Constitution vests “[a]ll legislative Powers herein granted” in Congress. Yet over the past century Congress has delegated expansive rulemaking authority to administrative agencies. Modern federal agencies exercise rulemaking, enforcement, and adjudicatory functions within single institutions — a structural configuration that sits uneasily with classic separation-of-powers theory.
The nondelegation doctrine emerged as a response to this development. In Panama Refining Co. v. Ryan (1935) and A.L.A. Schechter Poultry Corp. v. United States (1935), at the height of the New Deal, the Supreme Court invalidated two statutes for delegating excessive discretion to the executive. But those decisions proved to be the high-water mark. In the decades since, no federal statute has been struck down on nondelegation grounds.
The Court continues to invoke the “intelligible principle” standard, under which Congress must provide some guidance to the agency it empowers. In practice, however, the standard has proven extraordinarily forgiving. Delegations authorizing agencies to regulate in the public interest or to adopt standards requisite to protect health and safety routinely survive judicial scrutiny.
More recently, the Court has relied on the “major questions doctrine” to require clear congressional authorization when agencies assert powers of vast economic or political significance. But even here, the statute remains intact; the Court constrains agencies through interpretation rather than invalidating legislative delegations. The doctrine operates as a clear-statement rule, not as a structural prohibition.
As Cass Sunstein has argued, the American nondelegation doctrine has not disappeared so much as migrated. It now functions through interpretive canons that discipline agencies rather than through categorical limits that discipline Congress. The key inquiry becomes whether Congress has clearly authorized a particular regulatory move — not whether Congress has transferred fundamental policymaking authority in the first place.
This shift marks a conceptual transformation. Legislative power becomes satisfied by the articulation of broad aims. Agencies may determine what is “reasonable,” “necessary,” or “feasible.” Lawmaking is reduced to the act of announcing general policy objectives, while the substance of decision migrates elsewhere.
State Constitutional Persistence
State constitutional law tells a different story. Across a range of jurisdictions — with distinct constitutional texts and political traditions — courts continue to treat nondelegation as a structural doctrine rooted in the allocation of institutional responsibility.
Massachusetts provides a responsibility-centered model. Its constitution requires that governmental departments remain separate “to the end that it may be a government of laws and not of men.” In Commonwealth v. Clemmey (20026), the Supreme Judicial Court asked whether the legislature has delegated fundamental policy decisions, whether the statute provides adequate guidance, and whether safeguards constrain administrative discretion. Delegation is permitted, but only where legislative responsibility remains meaningfully intact.
Indiana reflects a more formal allocation approach. Its Constitution provides that “[t] The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.” The Indiana Supreme Court has invalidated statutes that blur these constitutional lines and has warned that judicial deference must not become abdication. The emphasis is institutional ownership: constitutional assignments of power must be respected in form and in substance. In Holcomb v. Bray (2022), the court invalidated a statute authorizing the Legislative Council to convene an emergency session—power the Constitution assigns to the Governor—emphasizing that structural lines cannot be redrawn by ordinary legislation. And in NIPSCO Industrial Group v. Northern Indiana Public Service Co. (2018), the court declined to defer to an agency’s statutory interpretation absent clear legislative authorization, cautioning that judicial deference must not collapse into abdication.
These examples illustrate two distinct models — one pragmatic and standards-based, the other allocation-driven and rule-like. But they are not isolated.
A Spectrum of State Approaches
State nondelegation doctrine does not speak with one voice. It spans a spectrum shaped by constitutional text, judicial methodology, and institutional self-understanding. And in recent cases, those differences have produced tangible results.
At one end are states that retain a formally robust allocation model grounded directly in their separation-of-powers clauses. Indiana and Arizona are emblematic. These courts treat legislative power not as mere procedural authorization but as institutional responsibility. The legislature may not transfer fundamental policymaking authority without concrete standards that preserve constitutional ownership of decision.
In Holcomb v. Bray (2022), the Indiana Supreme Court invalidated a statute that authorized the Legislative Council to call an emergency session — authority the Constitution assigns to the Governor. The case was not about administrative rulemaking at all; it was about institutional boundaries. The court refused to treat legislative convenience as a basis for rearranging constitutional allocation. The result was practical and immediate: the statutory mechanism for emergency sessions was struck down.
Arizona’s courts have taken a similarly structural approach. In Montenegro v. Fontes (2025), the Arizona Supreme Court reaffirmed that legislative power is “inalienable” and cannot be delegated without meaningful standards — a principle that applies even to voter-initiated legislation. The case underscored that popular lawmaking is constrained by the same separation-of-powers commitments as legislative enactments. In Arizona, the question is not simply whether agencies have statutory authorization; it is whether constitutional lines have been redrawn.
A second group of states employs a structured standards-and-safeguards framework. Massachusetts’s three-factor inquiry in Clemmey—examining legislative policy articulation, guiding standards, and procedural safeguards—illustrates this approach. Delegation is not suspect as such. It becomes problematic only when the legislature fails to declare policy, supply primary standards, or cabin discretion through meaningful procedural constraints.
New York’s doctrine provides a more contemporary illustration of this structured scrutiny. In the well-known Boreali v. Axelrod line of cases, the New York Court of Appeals invalidated sweeping public health regulations on the ground that the agency had resolved politically contested policy questions that the legislature itself had declined to decide. More recently, New York courts have continued to apply Boreali in challenges to pandemic-era regulations, scrutinizing whether agencies were implementing legislative policy or effectively creating it. The inquiry is functional but firm: administration may elaborate, but it may not substitute for legislative judgment on matters of broad social policy.
A third cluster foregrounds anti-abdication principles, particularly in domains historically regarded as core legislative functions. Mississippi and Pennsylvania treat the definition of crimes and the imposition of taxes as quintessentially legislative tasks. Florida demands ascertainable legislative standards before agencies may exercise sweeping regulatory authority. In these jurisdictions, courts have invalidated statutes that leave agencies to determine the very scope of criminal liability or taxation without meaningful legislative direction. The concern is not administrative flexibility but democratic accountability: certain decisions are understood to require legislative ownership because of their distributive and moral consequences.
Some jurisdictions blend these approaches. Arkansas, for example, employs what it terms a “legislative abdication” test. In McCarty v. Arkansas State Plant Board (2021), the Arkansas Supreme Court struck down a statutory scheme that allowed private industry representatives to exercise regulatory authority. Although Arkansas presumes statutes constitutional, it drew a firm line against outsourcing public lawmaking power to private actors. Administrative governance is accepted; privatized governance is not.
Delaware offers yet another variation. Its courts center the analysis on whether statutes provide “adequate standards and guidelines” to prevent arbitrary or capricious action. In zoning cases such as Schweizer v. Board of Adjustment (2009), the Delaware Supreme Court emphasized that unguided discretion in land-use decisions directly implicates property rights and therefore requires clear legislative standards. The focus is less on categorical prohibition than on preventing arbitrary governance through insufficient legislative guidance.
The doctrinal vocabulary varies across these jurisdictions. Some courts speak of “intelligible principles,” others of declared policy, safeguards, or anti-abdication norms. Yet beneath these differences lies a shared premise: legislative power entails substantive responsibility. Delegation may be tolerated as a practical necessity of modern governance, but it must not obscure the legislature’s duty to determine the fundamental policy choices that bind the public.
Authorization Versus Responsibility
The federal–state divergence is therefore not merely doctrinal; it is conceptual.
At the federal level, nondelegation operates primarily as an interpretive doctrine directed at agencies. The question is whether Congress has clearly authorized a particular regulatory action. The focus is downstream — on agency implementation. The major questions doctrine, for example, requires clear congressional authorization for decisions of vast economic or political significance. But the statute itself typically survives. The constraint operates at the level of interpretation, not constitutional invalidation.
At the state level, nondelegation often remains a structural doctrine directed at legislatures. The question is upstream — whether lawmakers have themselves made the fundamental policy decisions that bind the public before entrusting their implementation to administrative bodies. Where that responsibility is absent, statutes fall.
This distinction reflects competing understandings of legislative power. One sees lawmaking as the articulation of broad aspirations, leaving implementation — and often policy formation — to administrative actors. The other treats lawmaking as ownership: the duty to determine binding rules and bear responsibility for their consequences.
The difference is subtle but profound. Under an authorization model, Congress need only identify goals and delegate the work of specification. Under a responsibility model, legislatures must resolve the central policy questions themselves before delegating implementation.
Constitutional Design and Institutional Accountability
At the founding, legislative power was not conceived as a license to announce general aims and entrust their realization to others. It was the authority — and the burden — of determining the binding rules that govern the community. Execution meant carrying those rules into effect. Adjudication meant applying them to particular cases. Separation of powers was not an abstract taxonomy but an allocation of institutional responsibility.
On that understanding, the modern federal intelligible-principle regime sits uneasily with constitutional design. By reducing legislation to generalized authorization, it allows Congress to retain the form of lawmaking while relinquishing much of its substance.
State constitutionalism demonstrates that another path remains possible. Courts can accommodate administrative complexity while insisting that legislatures articulate policy, supply standards, and retain oversight. They can preserve flexibility without collapsing lawmaking into delegation.
The states’ approaches vary — some formal, some pragmatic, some standards-driven. But across this diversity, one theme persists: legislative power is not merely the power to authorize. It is the duty to decide.
For comparative constitutional scholars, the lesson is instructive. Within a single federal system, constitutional design has produced two distinct trajectories. Federal doctrine has migrated toward interpretive constraint and agency-focused review. State doctrine, in many jurisdictions, continues to frame nondelegation as a question of institutional accountability.
The divergence invites reflection beyond the United States. In constitutional systems grappling with expansive administrative governance, the key question is not simply how much discretion agencies may exercise. It is whether legislatures remain meaningfully responsible for the rules that bind the public.
State courts that enforce nondelegation with seriousness are not resisting modern administration. They are preserving an older constitutional insight: a government of laws depends on institutions willing to carry the weight of decision.
This internal divergence within the United States has broader comparative implications. Constitutional democracies around the world confront similar tensions between legislative authority and administrative governance. In systems such as Germany or South Africa, courts also require legislatures to supply sufficiently determinate standards when authorizing executive rulemaking. The American federal experience now resembles a model of authorization review; several U.S. states resemble a model of legislative-responsibility review.
The comparison suggests that debates over delegation are not merely technical disputes about standards. They reflect deeper judgments about constitutional design: whether legislative power is satisfied by broad authorization, or whether it entails a duty to decide.
In that respect, state courts have not innovated a novel doctrine. They have preserved a conception of legislative responsibility that federal doctrine has largely displaced — and that remains alive in other constitutional systems confronting the same structural dilemma of governance in the administrative age.
Suggested citation: Alemayehu Fentaw Weldemariam, U.S. Federal and State Nondelegation Doctrines in Comparative Perspective, Int’l J. Const. L. Blog, Mar. 7, 2026, at: http://www.iconnectblog.com/us-federal-and-state-nondelegation-doctrines-in-comparative-perspective/