For more than a century, however, lawmakers have tackled complex issues of national governance by creating regulatory agencies within the executive branch to address them. Those agencies, empowered with a certain degree of discretion, relieve Congress of the burden of determining which drugs are safe for the marketplace and which pollutants can’t be released into the air or groundwater. This interplay between executive and legislative power might not be exactly what James Madison and Alexander Hamilton had in mind in 1789. But it has nonetheless formed the bedrock for modern American governance.
Last year, all five members of the Supreme Court’s conservative majority expressed a willingness to revisit the doctrine. It’s tempting to think that the justices might be onto something here. I’ve written extensively in the Trump era about how lawmakers have sometimes given the executive branch too much latitude, particularly when it comes to national security and immigration. But the movement to expand the nondelegation doctrine doesn’t seek a healthier relationship between Congress and the administrative state. Instead, it hopes to roll back the administrative state itself.