The American Constitution, like many other constitutions, is said to contain an interesting doctrine specifically designed to ensure democratic self-government. According to this doctrine, sometimes called “the nondelegation doctrine,” the national legislature is not permitted to give, or to delegate, its lawmaking powers to any other body.

Many people say that the nondelegation doctrine is dead. According to the refrain, the doctrine was once used to require Congress to legislate with some clarity, so as to ensure that law is made by the national legislature rather than by the executive. But the nondelegation doctrine – the refrain continues – is now merely a bit of rhetoric, as the United States Code has become littered with provisions asking one or another administrative agency to do whatever it thinks best. Although this is an overstatement, it captures an important truth: Since 1935, the Supreme Court has not struck down an act of Congress on nondelegation grounds, notwithstanding the existence of a number of plausible occasions.

Is the nondelegation doctrine really dead? To the extent that it is not flourishing, is there a way to promote its essential purposes, in a way that requires legislative deliberation on the most fundamental issues? I believe that the doctrine is actually alive and well. It has been relocated rather than abandoned. Federal courts commonly vindicate not a general nondelegation doctrine, which would raise serious problems, but a series of more specific and smaller, though quite important, nondelegation doctrines.