Five pillars of the administrative state: Nondelegation

Five Pillars of the Administrative State
Nondelegation
•Nondelegation doctrine • Timeline • Court cases • Arguments for and against • Reform proposals • Scholarly work
More pillars
• Judicial deference • Executive control of agencies • Procedural rights • Agency dynamics
Click here for more coverage of the administrative state on Ballotpedia.
Click here to access Ballotpedia's administrative state legislation tracker.

See also: The five pillars of the administrative state

The nondelegation doctrine is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state. As Boston University School of Law professor Gary Lawson wrote in a 2001 law review article, "The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study."^[1] Some argue that the delegation of one branch of government's power to another, which allows administrative agencies to issue rules with the force and effect of law, violates separation of powers principles because it runs counter to the nondelegation doctrine—a legal principle holding that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. In other words, lawmakers cannot allow others to make laws. Others counter that statutes giving open-ended authority to executive or judicial actors are not actually delegations, and that administrative rulemaking is not tantamount to lawmaking, making concerns over delegation moot.

The following pages provide a deep dive into the history, application, and arguments for and against the nondelegation doctrine:

• What is the nondelegation doctrine?
• A timeline of the evolution of the nondelegation doctrine
• A list of court cases whose decisions shaped the evolution of the nondelegation doctrine
• A taxonomy of arguments about the nondelegation doctrine

• Arguments in favor of the nondelegation doctrine, and against delegation
• Arguments against the nondelegation doctrine, and in favor of delegation
• Arguments about where and how to draw the line between permissible and impermissible delegations of legislative power

• Reform proposals related to the nondelegation doctrine

• Legislative branch reform proposals
• Executive branch reform proposals
• Judicial branch reform proposals
• Proposals that argue no reform is needed

• A list of historical and contemporary scholarly work related to the nondelegation doctrine

Explore more pillars

• Five pillars of the administrative state: Judicial deference
• Five pillars of the administrative state: Executive control of agencies
• Five pillars of the administrative state: Procedural rights
• Five pillars of the administrative state: Agency dynamics

See also

• Ballotpedia's administrative state coverage
• Administrative State Index

Footnotes

v • e The Administrative State
Main	The Administrative State Project main page • Administrative State Project Index • Glossary of administrative state terms • Quotes about the administrative state • Administrative state • Rulemaking • Deference • Adjudication • Nondelegation doctrine • Ballotpedia's administrative state legislation tracker
Reporting	Changes to the Federal Register • Completed OIRA review of federal administrative agency rules • Federal agency rules repealed under the Congressional Review Act • Historical additions to the Federal Register, 1936-2016
Laws	Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
Cases	Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
Terms	Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography	"Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008)
Agencies	Administrative Conference of the United States • United States Civil Service Commission • U.S. Government Accountability Office • U.S. Office of Information and Regulatory Affairs • U.S. Office of Management and Budget