Article I, Section 1: General Principles

There are many contentious issues arising under Article I, Section 1, which vests Congress with “all legislative Powers herein granted.” I shall argue that the best reading of the Vesting Clause (Article I, Section 1) is captured by the concept of a delegation (rather than nondelegation) doctrine. Under this doctrine, Congress is the supreme lawmaker, with authority to delegate responsibilities—but with its guardrails and limits that must be strictly observed.

The Vesting Clause text is ambiguous, even read in light of the Constitution’s structure. See Thomas W. Merrill, Rethinking Article I, Section 1:  From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2114-39 (2004). One might read Article I, Section 1 to prohibit Congress from delegating the power to adopt rules having the effect of law (a restrictive reading of “legislative Powers”) or the power to pass statutes (a more expansive reading). But one also might read the Vesting Clause to give Congress the supreme authority to make law, including the discretion to delegate lawmaking authority to other officials (a middle-of-the-road reading).

The restrictive reading enjoys very little support in our nation’s constitutional history and traditions. As early as the Marshall Court, judges understood that Congress may delegate to other federal officials “powers which the legislature may rightfully exercise itself,” including the power to make rules with binding legal effect. Wayman v. Southard (1825). For the next century, the Court found violations of Article I, Section I only twice. In 1928, the Court confirmed that Congress may delegate lawmaking authority to other public officials but insisted that Congress “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr., & Co. v. United States (1928).

This middle-of-the-road reading has been followed by the Supreme Court for almost a hundred years. Since 1935, the Court has not invalidated legislation for violating the Vesting Clause. In practice, there is little or no directly enforceable nondelegation doctrine. Instead, Article I, Section 1 has been effectively interpreted to establish a delegation doctrine, whereby Congress has supreme lawmaking authority (subject to other constitutional limits), including the authority to delegate.

The Supreme Court’s unwillingness to give sharp teeth to a nondelegation principle has potential constitutional costs: it frees Congress to slough off hard policy questions to other officials and may reduce the democratic accountability for policymaking. See, e.g., David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993). But these potential costs might be managed by a middle-of-the-road understanding of the delegation doctrine as constitutionally empowering Congress but also enforcing the limits of its delegation.  “The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes.” Chrysler Corp. v. Brown (1979).   

That understanding of Article I, Section 1 is, and should be, accompanied by constitutionally inspired canons of construction to make sure that Congress has purposely delegated lawmaking authority and that such delegation is limited. Thus, judges will not readily find a delegation of lawmaking authority; a delegation must usually be explicit and is subject to the limitations set forth or implicit in the congressional grant or in other statutory provisions. Gundy v. United States (2018). This understanding of the delegation doctrine was the best conceptual foundation for the Supreme Court’s deference to agency rules that have the effect of law, United States v. Mead Corp. (2001), and survives in the Court’s landmark decision rejecting the Chevron deference doctrine. See Loper Bright Ents. v. Raimondo (2024) (rejecting the Chevron doctrine but preserving deference for rules and orders where Congress has delegated responsibility and discretion to agencies).

The democratic accountability concerns with the delegation doctrine have also been addressed by judicial review of agency actions pursuant to delegated lawmaking authority. To begin with, the Court insists that agencies engaged in legislative rulemaking follow the notice-and-comment procedures demanded by the Administrative Procedure Act, and which have been expanded by the Court itself. Motor Vehicle Manufacturers. Ass’n v. State Farm Mutual Auto. Ins. Co. (1983). Additionally, the Court insists that agencies delegated lawmaking authority not exceed the limits and guardrails suggested by the statutory text and intelligible principle accompanying the delegation.  Biden v. Nebraska (2023).

Finally, the Supreme Court has inferred from Article I, Section 1 certain “quasi-constitutional” canons of statutory interpretation that limit agencies from usurping the power to make big policy moves beyond those authorized by Congress. See William N. Eskridge Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 607 (1992). One is the major questions canon:  even if Congress has delegated to an agency general rulemaking or adjudicatory power, judges “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA (2014) (plurality opinion) (quoting FDA v. Brown & Williamson Tobacco Corp. (2000)).

The best argument for the major questions canon is that it gives teeth to the Article I, Section 1 norm of congressional legislative supremacy, because it imposes a significant limit on agency lawmaking that is consistent with the assumptions of the congressional process. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside:  An Empirical Study of Congressional Drafting, Delegation, and Statutory Interpretation:  Part I, 65 Stan. L. Rev. 901, 1003-04 (2013). 

The primary concern with the major questions canon is that it is a standard judges apply unevenly.  What is a “major question”?  How clear does the statute have to be to justify such a delegation? For example, OSHA has statutory authority to issue emergency temporary standards upon a showing that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that the “emergency standard is necessary to protect employees from such danger.” In 2021, OSHA issued emergency standards for large employers to protect their workers against COVID-19, an agent universally “determined to be toxic,” on the basis of expert findings that vaccination mandates were “necessary to protect employees from such danger” of workplace infection. Although the Court majority, in an unsigned opinion, reasoned from the major questions canon to rule that OSHA had acted ultra vires, National Federation of Indpendent Business v. Department of Labor (2020), the text clearly supported the agency: COVID-19 was an “agent” determined to be “toxic” (indeed, deadly) and OSHA’s precautions were justified by reams of expert evidence they were “necessary to protect employees from danger.” The statutory delegation was valid and had clear guardrails that the agency not only fit within but carried out to the letter. Not only was the canon overenforced in that case, but it has been underenforced in the Court’s shadow docket rulings in the Trump 2.0 cases. E.g., McMahon v. New York (2025). That the Republican majority overenforces the canon against the Biden Administration and underenforces it against the Trump 2.0 Administration is cause for concern.

The major questions doctrine is no panacea for Hayekian concerns with big government—but it might be superior to some alternatives. Strict enforcement of a strong nondelegation doctrine would impose huge governance costs and might unsettle decades of agency lawmaking. Signaling that Congress can delegate without limits may encourage lazy legislative responses. As Justice Kavanaugh has suggested, statutory interpretation canons, such as the major questions canon, might be the best balance the Court can render for the Article I, Section 1 norm. FCC v. Consumers’ Research (2025) (Kavanaugh, J., concurring).

Article I, Section 1 of the Constitution vests all legislative powers of the federal government in the Congress. This vesting clause reflects a fundamental principle of our constitutional republic: the lawmaking power must be exercised by the people’s representatives and accordingly cannot be delegated to other branches, private actors, or individual members of Congress. Despite this principle, Congress has transferred substantial regulatory power to administrative agencies within the executive branch. Because most of modern government operates through agencies exercising broadly delegated powers, the nondelegation principle is at the center of debates about the role and scope of the administrative state. This essay contends that a nondelegation principle is essential to our constitutional form of government. It then discusses the Supreme Court’s historical reluctance to enforce a strong form of the nondelegation principle and the modern Court’s efforts to cabin potentially expansive delegations.

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The Constitution places the lawmaking powers of the government in a representative Congress. The Framers recognized that the most legitimate form of government would vest the lawmaking power in “collective bodies of men.” John Locke, Second Treatise of Government § 94 (1689). James Madison and others frequently emphasized that vesting this power in a sufficiently large, representative legislature would provide the greatest security for liberty and property. See The Federalist Nos. 10, 55; see generally Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327 (2002).

The nondelegation principle reinforces separation of powers and serves as an important textual and structural limit on the federal government. Congress has limited, enumerated powers that confine the overall scope and power of the federal government to better preserve individual liberty. And the Constitution makes it difficult to enact laws, requiring majorities of both the House of Representatives and Senate, as well as the approval of the President. If widescale delegation is permissible, administrative agencies have discretion to increase the reach of the federal government without going through this difficult process. The Framers created a unitary executive for energetic execution of the laws, but delegations allow for energetic agency lawmaking that is at odds with the constitutional structure. And open-ended delegations allow executive agencies to combine lawmaking with law execution and adjudication. The mingling of these functions in a single branch of government raises questions about political accountability, constitutional limits, and due process.

The exclusive vesting of all legislative powers in Congress serves several critical purposes, as the Framers recognized. First, laws made by the people’s representatives would have legitimacy derived from the consent of the people. Second, by requiring members of Congress to deliberate and to compromise, the difficult process of lawmaking would promote laws aimed at the general good and equally applicable to all people. Third, a large, collective legislature is more resistant to the influence of small factions and special interests. Collective lawmaking in Congress would not be perfect, but, along with other constitutional safeguards, would minimize the dangers of oppressive legislation. See Neomi Rao, Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fla. L. Rev. 1, 31–32 (2018).

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The Supreme Court has consistently reiterated the importance of the nondelegation principle. Nondelegation is “a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark (1892). The Court has emphasized that the Constitution’s “text permits no delegation of [legislative] powers,” because “Article I, § 1, of the Constitution vests ‘[a]ll legislative Powers herein granted … in a Congress of the United States.’” Whitman v. American Trucking Associations, Inc. (2001).

Yet in practice, the nondelegation principle has been enforced largely in the breach. Since the New Deal, the Supreme Court has done little to halt Congress’s increasingly open-ended delegations to executive branch agencies. Despite consistently recognizing a nondelegation principle, the federal courts have tolerated a significant transfer of regulatory power from Congress to executive branch agencies. This judicial reluctance to enforce the nondelegation principle stems in part from the difficulty of defining an unconstitutional delegation. The executive power includes the power to interpret and to execute the law, but not to make the law. As Justice Black famously explained, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown Sheet & Tube Co. v. Sawyer (1952). To find a violation of the nondelegation principle, courts must determine that a statute is so open-ended that the executive is effectively exercising lawmaking power rather than executive power—a line that is often difficult to draw.

The Supreme Court has also suggested that judicial enforcement of the nondelegation principle is unnecessary because the political competition between Congress and the President will prevent excessive delegations of lawmaking power. As Justice Scalia explained, “Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts …. Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power.” Mistretta v. United States (1989) (Scalia, J., dissenting).

Why does Congress delegate so much power to the President, its rival for political power? Increased political polarization and the desire to avoid responsibility for difficult choices provide some explanation. In addition, delegation may empower members of Congress to control administrative discretion by influencing executive agencies, allowing members to enhance their individual power through collusion with agencies. See generally Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). Delegation may unravel the competitive tension between Congress and the President, undermining an important structural check between the legislative and executive branches.

Political checks are also unlikely to work because widespread delegation has aggrandized the executive branch and weakened Congress as an institution. The unitary executive possesses all of the structural advantages of quick action. Once authority has been delegated, it is difficult to pass legislation withdrawing that authority. While Congress retains the power to reassert its lawmaking power, as a practical matter it has shown little inclination to do so.

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Perhaps in part because of this political process failure, at least four current Supreme Court justices have expressed a willingness to enforce the nondelegation principle more rigorously. They have explained that the prohibition on delegating legislative power follows from the original meaning of the Constitution. Justice Gorsuch, for instance, has contended that “[t]he framers understood … that it would frustrate the system of government ordained by the Constitution if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.” Gundy v. United States (2019) (Gorsuch, J., joined by Roberts, C.J., and Thomas, J., dissenting).

The nondelegation principle serves to “safeguard[]” the constitutional structure, which in turn was “designed to protect … liberties, minority rights, fair notice, and the rule of law.” Gundy v. United States (2019) (Gorsuch, J., dissenting). As Justice Thomas has argued, the judiciary’s failure to enforce the nondelegation principle comes at the “cost [of] our Constitution and the individual liberty it protects.” Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring in the judgment). In examining the consequences of broad delegations, Justice Gorsuch has maintained that when Congress delegates its rulemaking authority to the executive, “rules reflect not the public deliberations of elected representatives, but the concerns of small cadres of elites.” FCC v. Consumers’ Research (2025) (Gorsuch, J., joined by Thomas and Alito, JJ., dissenting). In short, the justices who favor more robust enforcement of the nondelegation principle have explained at length its connection to preserving the Constitution’s separation of powers and ultimately our republican form of government.

Rather than directly invalidating statutes on nondelegation grounds, the Court has favored interpretive rules that vindicate nondelegation principles. One such rule is the major questions doctrine. When interpreting the limits of an agency’s authority under a statute, courts presume that Congress did not delegate authority to issue rules of major significance unless the statute clearly grants the agency the requisite authority. This doctrine helps ensure that statutes are not interpreted to provide overly broad delegations that run afoul of the nondelegation principle. Moreover, the major questions doctrine aligns with commonsense interpretive principles. Courts presume that Congress does not “hide elephants in mouseholes” when granting authority to the executive. Whitman v. American Trucking Associations, Inc. (2001). The major questions doctrine has taken on increasing importance in recent years. For example, the Supreme Court reasoned that a broad public health statute did not authorize the Centers for Disease Control and Prevention to impose a nationwide moratorium on evictions. Alabama Ass’n of Realtors v. HHS (2021).

The Court has also held that Article III courts must exercise independent judgment when interpreting the scope of authority delegated to administrative agencies. See Loper Bright Enterprises v. Raimondo (2024) (overruling the Chevron doctrine, which provided that courts should defer to a federal agency’s reasonable interpretation of an ambiguous statute). The Supreme Court recognized that federal courts must independently find the best meaning of the law when interpreting statutes. In reaffirming this fundamental principle, the Court also repeatedly stated that, although Congress may delegate some authority to an agency, it must do so in a manner “consistent with constitutional limits.” Loper Bright (2024). The six justices in the Loper Bright majority explicitly recognized that there are constitutional limits on what Congress may delegate. It logically follows that courts, exercising their independent judgment to say what the law is, must police not only the statutory limits of delegations, but also the constitutional limits of delegations.

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Given the importance of ensuring that the people’s representatives make the laws, courts should provide greater scrutiny when Congress delegates power to the executive branch. Yet the nondelegation principle cannot depend solely on judicial review. Congress has an independent duty to safeguard the legislative power. Article I, Section 1 of the Constitution provides for the essential and central role of Congress in our republican form of government, even after the rise of the modern administrative state.