For conservatives committed to the original understanding of the Constitution, such broad transfers of legislative authority violate the separation of powers. The Framers granted executive power solely to the president, legislative power solely to Congress, and judicial power solely to the courts, rather than allowing their combined exercise, as in parliamentary systems. They worried that, as James Madison wrote in “Federalist No. 47,” the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, … may justly be pronounced the very definition of tyranny.”
But beginning with Woodrow Wilson, progressive thinkers viewed the separation of powers as obsolete and ineffective for a modern industrial society. They urged instead that Congress delegate its powers to expert agencies, which could issue regulations without having to survive both houses of Congress and the president. The agencies would become perpetual-motion machines of progressive lawmaking.
The New Deal and Lyndon Johnson’s Great Society put these theories into practice. Despite the separation of powers, federal-government agencies now exercise all three types of power—making laws, enforcing laws, and adjudicating disputes over these laws. It is the agencies, not Congress, that issue the real federal laws that most Americans encounter every day. The broad empowerment of the administrative state has created a bureaucracy with a mind of its own and has allowed our elected representatives to escape responsibility for difficult decisions. While this problem is worse with the so-called independent agencies, such as the Federal Reserve, the Federal Communications Commission, and the Securities and Exchange Commission, whose leaders cannot be removed by the president, both they and the regular executive agencies supervised by Cabinet secretaries exercise broad legislative powers without serious review by the courts.
In Gundy, a 5–3 court found no violation of the nondelegation doctrine. But beneath the surface, a conservative majority declared its intent to restore limits on Congress’s ability to give away its own power. Roberts, Thomas, and Gorsuch voted to strike down the sex-offender law outright. Kavanaugh recused himself, but his record as a lower-court judge displays a strong hostility to independent agencies. Tellingly, Alito, who concurred with the four liberals and provided a fifth vote to uphold the law, nevertheless appended a one-page statement: “If a majority of this Court were willing to reconsider the approach we have taken [to nondelegation] for the past 84 years, I would support that effort.” That makes five votes to begin restoring the Constitution’s separation of powers and prevent Congress from handing off hard decisions—and the authority to make them—to the agencies.