By Dan A. Farber, author of Contested Ground: How to Understand the Limits of Presidential Power

Almost ninety years ago today, the U.S. Supreme Court issued a ruling known as the “Sick Chicken Case” — or more formally, Schechter Poultry v. United States. Until recently, this New Deal-era case seemed like ancient history, just another part of the doomed effort of a reactionary Court to hold back economic reform.

The Schechter case involved poultry processors who violated a series of regulations, including one prohibiting the sale of diseased chickens. They attacked the constitutionality of the National Recovery Act, which had provided the basis for issuing the regulations. In 1935, the Supreme Court struck down the law, calling it an unconstitutional delegation of Congress’s lawmaking power. The effect of the Court’s ruling in the Schecter case was to free the poultry industry from a host of regulations, including health and safety rules.

 That year was also the date of the only other Supreme Court decision using the nondelegation doctrine to strike down a federal law. According to this doctrine, it is unconstitutional for Congress to give an administrative agency or private entity the power to make legally binding regulations, unless Congress provides sufficient limits on that power. Generally, the Court has applied the doctrine very leniently, upholding laws that contain only modest limits on regulation. The entire issue seemed safely in the past.

But now, the nondelegation doctrine has returned, zombie-like, threatening a sweeping constitutional attack on modern regulation. Conservative judges and legal scholars have advocated a revival of the nondelegation doctrine, which they wish to apply with unprecedented vigor. This campaign to weaponize the nondelegation doctrine against the regulatory state now seems to be on the verge of success.

As I discuss in my forthcoming book, Contested Ground: Understanding the Limits of Presidential Power, the conservative wing of the Court recently signed on to an effort to revitalize the nondelegation doctrine. Three conservative justices (Gorsuch, Thomas, and Roberts) proposed stark limits on administrative discretion. Under this proposed approach, government agencies would generally be limited to “filling in the details” or engaging in fact-finding rather than dealing with major policy issues. Laws that gave agencies greater authority to make policy would be struck down. A fourth justice (Alito) did not join the decision but indicated a desire to revamp the doctrine in a later case. A fifth conservative justice (Kavanaugh), who hadn’t participated in that case, later suggested his own support for the effort. A sixth conservative justice was appointed more recently. In short, there are at least five and possibly six justices willing to take a trip back in time to 1935.

Much is at stake. Existing regulatory statutes give agencies broad power to turn general policies into specific requirements for industry. These statutes provide the basis for federal regulation of the financial sector, polluting industries, securities markets, banks, and more.   An aggressive interpretation of the nondelegation doctrine would places all those statutes in jeopardy, potentially eliminating large swathes of government regulation by judicial fiat. In theory, Congress could simply pass replacement legislation containing all the “missing” specifics, such as numerical limits on every pollutant in every industry. But Congressional gridlock makes it unlikely that Congress could engage in such a massive legislative efforts. If the Court applies the nondelegation doctrine as aggressively as some conservatives are hoping, the likely result would be sweeping deregulation, far beyond the regulatory rollbacks that we saw in the Trump era.

Although conservatives like to portray themselves as limiting the power of the bureaucracy, most major regulatory efforts are closely overseen by the White House. In effect, by reviving the nondelegation doctrine, conservatives are both striking a blow against the regulatory state and against the power of presidents to set domestic policy agendas.

Some progressives fear, and some conservatives hope, that the Court will use the doctrine to decimate the regulatory state. But as I explain in Contested Ground, I suspect relatively few laws will be declared unconstitutional outright. Many more will be read narrowly by the courts in order to limit agency authority.  Courts generally interpret laws narrowly if a broader interpretation would raise constitutional issues. An example is recent lawsuits challenging the CDC moratorium against evictions during the pandemic.  Earlier this month, a federal judge declared the moratorium invalid. The judge gave federal public health laws a narrow reading, in part because it might be an unconstitutional delegation for Congress to give CDC such broad public health powers.  As a result of rulings like this, presidents like Biden may be hamstrung in their efforts to use regulatory powers to deal with national crises or newly emerging issues.

In short, the nondelegation doctrine has real potential to unwind government regulation. Battles over the presidency may involve abstruse constitutional doctrines, but there are clear real world stakes. 

The nondelegation doctrine is only part of the intense debate now taking place over the power of the executive branch. Donald Trump’s presidency raised questions in progressives’ minds over whether the modern presidency has become so powerful that it poses a threat of authoritarianism. Conservatives felt much the same about Obama and are beginning to feel similarly about Biden.

In this polarized age, it is very difficult to disentangle our views of the constitutional issues from our views about particular presidents and their actions. As I argue in Contested Ground, however, if we want to maintain our society’s attachment to the rule of law, we need to find ways to draw back from the politics of the moment. Regardless of who is in office, we have to balance the need for strong presidents who can respond to an increasingly complex society with the need to ensure that presidents do not abuse those powers.

This post is part of our #LSA2022 conference series