For the better part of a century, the Court has permitted Congress to delegate broad policymaking authority to federal agencies. The Court has not struck down a statute under the non-delegation doctrine since 1935, when a conservative majority was hostile to progressive New Deal measures aimed at protecting workers and consumers. Since then, the increasing complexity of modern industrialized society has made it obvious that—even when Congress is not as dysfunctional as it is now—it’s not possible for Congress to legislate the technical details necessary to regulate the environment, health, safety, labor, education, energy, elections, discrimination, housing, and the economy.
As a result, executive agencies create regulations and implement binding policies. That has long been understood as both necessary for the country to function and consistent with the Constitution. The Court has applied a test: if a statute gives an agency discretion that is sufficiently constrained by an “intelligible principle,” then Congress is not unconstitutionally delegating legislative power. But many conservatives complain that that test has been applied in a lax way, so that any statute delegating any scope of authority appears to satisfy it. For example, the Court has repeatedly upheld statutes that give agencies only general guidance, such as to regulate in the “public interest,” or issue air quality standards “requisite to protect the public health.”
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