Is Most of the Federal Government Unconstitutional?

The U.S. administrative state rests on a constitutional doctrine that is widely considered to have been abandoned over the last eight decades. Yet the nondelegation doctrine, which suggests that the federal Constitution limits Congress’s ability to delegate significant policy-making authority to administrative agencies, is a topic of significant debate among legal scholars. The U.S. Supreme Court has not invoked the nondelegation doctrine to strike down a statute since 1935. This past summer, in Gundy v. United States, the Court voted 5–3 to—yet again—uphold a statute against a nondelegation challenge. But Justice Alito concurred only in the judgment, saying that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Justice Kavanaugh did not participate in the Gundy case, but issued a statement a few months later indicating that he would be willing to revive the long-defunct doctrine. With the support of Justice Kavanaugh and Justice Alito, a majority of the Court would appear to be in favor of limiting Congress’s ability to delegate major policy decisions. Five votes in favor of the nondelegation doctrine could have major consequences. As Justice Kagan wrote, if the law in Gundy is unconstitutional, then “most of government is unconstitutional.” The History of Nondelegation The Future of Nondelegatio