The Non-Delegation Doctrine in an Age of Expanding Executive Orders
Some perspective on Executive Orders
In recent years, the increasing use of executive orders by the President of the United States has raised significant concerns about the balance of power among the branches of government. While executive orders are a long-established feature of the American constitutional system, their growing frequency and scope have sparked renewed interest in the non-delegation doctrine—a principle that holds that Congress cannot delegate its legislative powers to the executive branch without clear and intelligible principles to guide that delegation. As the boundaries of executive power continue to be tested, reaffirming the non-delegation doctrine is critical to maintaining the constitutional separation of powers and preventing an unchecked expansion of presidential authority.
The Rise of Executive Orders
Presidents have used executive orders since George Washington, but their role has expanded significantly in the modern era. While early executive orders were largely administrative, contemporary orders often effect substantive policy changes, sometimes in ways that Congress has explicitly rejected or failed to authorize. The trend is not unique to any one administration—both Democratic and Republican presidents have relied increasingly on executive orders to bypass legislative gridlock.
For example, President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program was implemented via executive action after Congress failed to pass immigration reform. President Donald Trump’s travel ban, restricting immigration from several predominantly Muslim countries, was also issued through an executive order. More recently, President Joe Biden has used executive orders to advance climate policy, address student loan debt, and regulate artificial intelligence. These actions demonstrate the modern presidency’s reliance on executive orders to achieve policy objectives, often in response to a dysfunctional or divided Congress.
While executive orders can be a legitimate tool for implementing laws, they become problematic when they effectively create new laws rather than executing existing ones. This raises the question: to what extent does Congress’s failure to legislate justify executive action? And at what point does executive lawmaking violate the non-delegation doctrine?
The Constitutional Foundations of the Non-Delegation Doctrine
The non-delegation doctrine originates from Article I, Section 1 of the U.S. Constitution, which states that "All legislative Powers herein granted shall be vested in a Congress of the United States." This provision establishes the principle that only Congress can make laws. Early Supreme Court rulings, most notably in Wayman v. Southard (1825) and Field v. Clark (1892), reinforced the doctrine, holding that while Congress could delegate some administrative discretion, it could not transfer its core legislative functions to another branch.
The Supreme Court formally articulated the non-delegation doctrine in J.W. Hampton, Jr. & Co. v. United States (1928), in which Chief Justice William Howard Taft stated that Congress could delegate power to the executive branch only if it provided an "intelligible principle" to guide the exercise of that power. This meant that any delegation had to be constrained by clear standards and could not grant the executive unlimited discretion.
The most significant application of the non-delegation doctrine came during the New Deal era in Panama Refining Co. v. Ryan (1935) and Schechter Poultry Corp. v. United States (1935), in which the Supreme Court struck down congressional laws that delegated excessive legislative power to the executive. However, after these rulings, the Court largely abandoned strict enforcement of the doctrine, allowing Congress to grant broad discretion to administrative agencies and the executive branch.
Youngstown and the Limits of Executive Power
A defining case in presidential power is Youngstown Sheet & Tube Co. v. Sawyer (1952), in which the Supreme Court struck down President Harry Truman’s executive order to seize steel mills during the Korean War. Writing for the majority, Justice Robert Jackson outlined a tripartite framework for evaluating executive power: (1) the president’s authority is at its maximum when acting with congressional authorization, (2) it is in a "zone of twilight" when Congress is silent, and (3) it is at its lowest when acting contrary to congressional intent.
The Youngstown decision reaffirmed that executive orders cannot substitute for legislation—a principle that remains critical today. However, modern presidents have increasingly operated in the "zone of twilight," issuing executive orders where Congress has failed to act, effectively pushing the boundaries of executive lawmaking. The Supreme Court’s reluctance to enforce the non-delegation doctrine has allowed this trend to continue unchecked.
Chevron and the Delegation of Power to Agencies
Another key development in executive power is the Chevron doctrine, established in Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984). In this case, the court ruled that courts must defer to an administrative agency’s reasonable interpretation of ambiguous statutes. This ruling effectively expanded the power of the executive branch, as agencies—often directed by the president—could make policy decisions with minimal judicial oversight.
In June 2024, the Supreme Court issued a landmark decision in Loper Bright Enterprises v. Raimondo, overruling the 1984 Chevron doctrine. This doctrine mandated judicial deference to federal agencies' reasonable interpretations of ambiguous statutes. Chief Justice John Roberts authored the 6-3 decision, which declared that courts must now exercise independent judgment in interpreting laws, significantly curtailing the power of federal agencies.
This ruling has profound implications for the non-delegation doctrine. By eliminating Chevron deference, the Court has reinforced the principle that legislative powers cannot be delegated without clear guidelines, ensuring that agencies do not overstep their authority. This shift emphasizes the necessity for Congress to provide precise statutory directives, thereby upholding the constitutional separation of powers and preventing undue expansion of executive authority through agency interpretation.
In essence, the Loper Bright decision revitalizes the non-delegation doctrine by demanding that legislative intent be explicit, thereby limiting the executive branch's ability to unilaterally shape policy through ambiguous statutory interpretations.
Reviving the Non-Delegation Doctrine in an Era of Executive Overreach
The modern rise of executive orders presents an even greater threat to the separation of powers. When Congress fails to act on pressing issues, presidents increasingly take matters into their own hands, effectively making law through executive fiat. This trend undermines democratic accountability, as executive orders are not subject to the same deliberative process as legislation. Moreover, they can be easily reversed by subsequent administrations, leading to policy instability and an erosion of the rule of law.
Reaffirming the non-delegation doctrine would impose necessary limits on presidential power. Congress must take greater responsibility in drafting clear and specific legislation, ensuring that it does not leave major policy decisions to the executive branch. At the same time, courts must be willing to strike down executive orders that exceed the authority granted by Congress. The doctrine serves as a constitutional safeguard, ensuring that lawmaking remains in the hands of the elected representatives of the people rather than concentrated in the executive branch.
Conclusion: Reclaiming Legislative Authority
The non-delegation doctrine is an essential but often overlooked component of American constitutional law. In an era when executive orders are being used as a substitute for legislation, reviving this doctrine is critical to restoring the balance of power. While the executive branch has an important role in enforcing laws, it must not assume the role of legislator. Without meaningful constraints on executive authority, the constitutional separation of powers risks being permanently eroded.
A reinvigorated non-delegation doctrine, combined with a rollback of Chevron deference, would reaffirm the principle that lawmaking belongs to Congress. It would require clearer statutory guidelines, limit presidential overreach, and ensure that major policy decisions reflect democratic deliberation rather than unilateral executive action. In doing so, it would uphold the constitutional framework designed to prevent tyranny and preserve the rule of law.