Congress is allowed to Delegate, not Abdicate

The Nondelegation Clause

In principle, it prevents Congress from giving away too much of its responsibilities to the executive branch. In practice, however, the courts (since the 1940s) have been allowing Congress to delegate broader authority that some feel is justified by the Constitution.

Recently, Justices Gorsuch and Thomas have called for reviving a stronger nondelegation doctrine, especially in cases involving massive regulatory or economic power. In the 2022 case Gundy v. United States, Gorsuch dissented, warning that vague delegations let the executive branch make laws without accountability. There seems to be strong conservative support for limiting the ability of Congress to delegate power to the executive "branch."

These justices have focused their IRE in the wrong place. Instead of looking at the President or Agencies that do not have adequate safeguards to protect against partisan interference, they have included Congressional Delegation to Professional, Bipartisan Agencies, which are obviously Justifiable for practical and efficient regulation of complicated issues — Delegation to the President or Politically-Controlled Agencies, however, is neither logical nor permissible under any rational understanding of nondelegation.

Our Constitution vests legislative power in Congress but recognizes that some delegation is necessary. The question is not whether but to whom. Delegation to the President or politically appointed agencies threatens the separation of powers, distorts democratic accountability, and opens the door to unchecked executive power.

Modern legislation often involves highly technical matters: drug approvals, environmental science, infrastructure safety, etc. and Professionally staffed agencies, such as the Federal Reserve or the National Transportation Safety Board, are equipped to interpret complex data and administer policy without partisan pressure. Bipartisan boards and fixed terms insulate these agencies from election-driven decision-making, preserving expertise and continuity. Delegation is necessary where competence, not politics, best serves the nation's needs.

The Framers of our constitution feared concentrated power, especially by a sole executive. Delegating vast discretion to the President (e.g., trade tariffs, emergency economic controls) collapses the separation between legislative and executive powers, mainly when the statutes include vague terms like “national security” or “unfair trade.”

Lawmaking cannot be handed to one person without meaningful limits.

When Congress delegates to the President, especially under broad or emergency statutes, it risks replacing representative lawmaking with unilateral rule by decree. Which is what we are seeing now.

Agencies, on the other hand, with bipartisan boards (e.g., the Federal Election Commission Federal Communications Commission) must operate under rules that require input from both major parties, reducing the risk of partisan abuse. These structures Prevent one-party domination, Encourage deliberative policymaking, and preserve public trust in institutional integrity—institutions that include the Congress itself.

Delegating to such bodies honors the constitutional intent that laws reflect a plurality of interests — not the will of a single branch or individual.

On the other hand, Presidential Delegation Encourages Policy Whiplash and Undermines Stability.

Agencies under full presidential control (e.g., EPA under political appointees) frequently reverse course between administrations, leading to Legal uncertainty, Regulatory chaos, and economic inefficiency—all of which we have seen in recent years but never so badly as we are seeing now.

Delegating to the President ensures that law is driven by election cycles, not long-term public interest or expert judgment. A perfect example is U.S. trade policy, and environmental rules have become yo-yo policies, swinging wildly between administrations depending on ideology — not facts.

We are now at a crossroads where our Democracy Depends on Institutional Boundaries.

We need laws written by legislators or bipartisan agencies, not dictated by the executive.

Political paralysis in Congress requires reform, not abdication.

Delegating to bipartisan boards with public oversight ensures that laws are applied fairly and predictably and that no person simultaneously holds legislative, executive, and regulatory power.

While Congress should retain the authority to delegate power where necessary, it must do so in keeping with the intent of our founders. Delegation to bipartisan, professional agencies maintains the constitutional balance, fosters competence, and safeguards democratic accountability. However, delegation to the presidency or purely political agencies undermines those same values. In an era of growing executive dominance, reinforcing this distinction is essential to preserving the republic.