A legislature delegates its legislative power when it authorizes others to make rules of conduct in its place. Such delegation harms liberty and undercuts democracy because it permits legislators to largely escape responsibility for the rules that govern society. When legislators enact a rule of conduct by statute, they create rights and impose duties on voters. They are thus accountable at the polls for both the benefits and costs of the rule. When, however, they delegate lawmaking power to some executive agency, they instruct that agency to make rules of conduct to serve some high‐​minded purpose while imposing no duties. In this manner, legislators can claim credit for the benefits expected if it pursues vigorously the purpose announced by the legislature, but shift blame to the agency for the costs and disappointed expectations if it does not. In this way, delegation allows legislators to evade accountability for the costs and disappointments.

John Locke wrote in the Second Treatise on Government that “the legislative cannot transfer the power of making law to any other hands” because the electorate has indicated that they placed in those specific hands the power of making law. This concern for the delegation of legislative authority to others was to become an issue with the American colonists in their struggle with Great Britain. The colonists opposed not only taxation without representation, but also regulation without representation. James Madison understood the opening words in the first article of the U.S. Constitution—“All legislative Powers herein granted shall be vested in a Congress of the United States”—to mean that Congress alone was empowered to exercise those powers and this is, in fact, what prevailed for the first 100 years of the Republic. Indeed, according to both the early Supreme Court and Friedrich A. Hayek, the power to make law is the power to make the rules of private conduct. According to early Supreme Court decisions, the power to make law is the power to make the rules of private conduct. F. A. Hayek reached similar conclusions and pointed to the dangers of lodging what amounted to legislative power in the hands of administrative tribunals that were empowered to make ad hoc rulings.

During the Progressive Era, from about 1875 to 1920, social reformers unwittingly eroded the barrier against a conflation of these two functions. These reformers encouraged legislatures to enact statutes that authorized executive agencies, ostensibly staffed by experts, to achieve regulatory goals by overseeing private conduct. The Progressives wrongly held that the application of technical expertise by agencies would produce uniquely right answers. They also thought that such statutes authorized agencies to execute law, rather than to make it. So, although the Progressives strongly believed in the importance of the separation of powers, they did not view statutes of this kind as giving agencies lawmaking power.

Under the influence of the Progressives, Congress passed statutes establishing the Interstate Commerce Commission, the Federal Trade Commission, and other commissions and agencies. The Supreme Court approved them on the grounds that the Congress was empowering these agencies not to enact but, rather, to implement the law. By the time it became clear that this approach to solving regulatory problems through the application of specialized technical knowledge failed to produce uniquely right answers, a substantial number of lawmaking agencies had been created.

In 1935, the Supreme Court, in a unanimous decision, ruled that the National Recovery Administration constituted a delegation of legislative power to the executive that violated the provisions of the Constitution. The Court thus attempted to draw a line against the erosion of legislative authority, which had reached mammoth proportions under the New Deal. The Court’s action provoked President Roosevelt to attempt to “pack” the court, thus ensuring that a majority of justices would sanction the creation of further agencies of this type. Although Congress did not support Roosevelt’s court‐​packing scheme, the Court soon retreated on the issue of legislative delegation to the point where today the delegation of legislative power to expert agencies is generally approved.

The Court nonetheless remains concerned about delegation and has attempted to prevent its expansion into yet further areas. It has ruled against Congressional attempts to delegate legislative powers to one house of Congress, two houses of Congress acting without the president, the president acting alone, or to law enforcement officials or private persons. The Court also interpreted some statutes to minimize the degree of delegation. State courts have gone even further.

Concern for the problems posed by legislative delegation is not limited to the United States. For example, the German Constitution has a provision limiting delegation, and some opposition to increasing the power of the European Community has been provoked by fears that the Community’s agencies would make laws for which no legislators would be directly accountable.

Further Readings

Hayek, Friedrich A. Law, Legislation and Liberty: Volume 1. Rules and Order. Chicago: University of Chicago Press, 1978.

Lowi, Theodore J. The End of Liberalism: The Second Republic of the United States. New York: W. W. Norton, 1979.

Schoenbrod, David. “Politics and the Principle That Elected Legislators Should Make the Laws.” Harvard Journal of Law and Public Policy 26 (Winter 2003): 239–280.

———. Power without Responsibility: How Congress Abuses the People through Delegation. New Haven, CT: Yale University Press, 1993.

———. “Symposium—The Phoenix Rises Again: The

Nondelegation Doctrine from Constitutional and Policy Perspectives.” Cardozo Law Review 20 (January 1999): 731–766.

Sunstein, Cass R. “Nondelegation Canons.” University of Chicago Law Review 67 (Spring 2000): 315–343.

David Schoenbrod
Originally published