Delegation of Authority: From the People to Government, and the Nondelegation Doctrine

The people delegate authority to government

This page is for education, information and intellectual discussion. It explains what each authority says and what each court decided. It does not tell anyone to use these arguments, and it is not legal advice.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Const. amend. X

The Constitution is the instrument of delegation. Its preamble begins “We the People,” and the federal government has only the powers the Constitution grants. Yick Wo v. Hopkins (1886) put it this way: “while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people.” State constitutions delegate state power in the same way, and the Tenth Amendment reserves what was not delegated.

Locke and the nondelegation doctrine

Fourthly, The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.

John Locke, Second Treatise of Government § 141 (1690)

Locke’s idea became the nondelegation doctrine. Article I, Section 1 vests “All legislative Powers herein granted” in Congress. If Congress could hand that power to someone else, the people’s choice of who makes the law would mean little.

How the Supreme Court applies the nondelegation doctrine

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825)

It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.

Wayman v. Southard, 23 U.S. 1, 42–43 (1825)

What the case was about: Chief Justice Marshall held that Congress could let federal courts set their own procedures, as long as Congress made the important choices and left others to “fill up the details.”

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)

If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)

What the case was about: The Court upheld a law letting the President adjust tariff rates within limits Congress set.

How it applies: The “intelligible principle” test is still the governing standard.

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935)

What the case was about: Both cases struck down parts of the National Industrial Recovery Act. In Panama Refining, Congress had “declared no policy, has established no standard, has laid down no rule” for the President’s oil orders. In Schechter, private industry groups wrote binding codes of competition.

How it applies: These 1935 decisions are the only times the Court has struck down a federal statute for delegating legislative power to the President.

Recent nondelegation decisions

• Gundy v. United States, 588 U.S. 128 (2019) — a four-Justice plurality upheld a delegation to the Attorney General under the sex-offender registration law. Three Justices dissented and called for a stricter test.
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) — “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.” Courts now decide for themselves the scope of the authority Congress delegated.
• FCC v. Consumers’ Research (2025) — “The universal-service contribution scheme does not violate the nondelegation doctrine.” The Court upheld the FCC’s Universal Service Fund.

How to check the delegation of authority claim yourself

The best test of delegation of authority is simple: look for a court that accepted it. We have not found one in the reported decisions. Next, read the actual law the claim points to. For example, check the statute, the UCC section or the constitutional text it cites. Then compare that text with what the claim says it means. For a real problem with a debt, a court case or a tax bill, a licensed attorney can explain your actual options. Our directory is a good place to start.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• law.cornell.edu

Related reading on Lawtopolis:

• Sovereignty of the People: Chisholm, Yick Wo, Perry and the Supremacy of the Constitution
• Separation of Powers: Legislative, Executive and Judicial Branches
• Public Law and Private Law: The Two Branches of the Legal System