The Hidden Nondelegation Issue Raised by Trump v. Slaughter
On Dec. 8, 2025, the Supreme Court heard argument in Trump v. Slaughter to consider whether the Court should overturn its nearly century-old decision in Humphrey’s Executor v. United States. That decision is the foundation stone of independent agencies and the administrative state. If, as expected, the Court jettisons Humphrey’s Executor, the aftershocks of its decision will have profound implications for the scope of presidential power.
Slaughter grows out of a challenge to President Trump’s firing of Rebecca Slaughter, a Democratic commissioner of the Federal Trade Commission (FTC). Slaughter argued that, by law, she could be removed only for cause, which is defined in the FTC’s organic statute as “inefficiency, neglect of duty, or malfeasance in office.” The president, however, claimed authority to fire her for any reason—including pure policy disagreements—by virtue of the vesting of executive power in the president under Article II of the Constitution, as understood through the lens of unitary executive theory. The district court agreed with Slaughter, relying principally on the 1935 Supreme Court decision in Humphrey’s Executor that held—in a case also considering an FTC commissioner—that Congress had validly limited the president’s power to remove FTC commissioners in order to safeguard the agency’s independence.
But as the district court acknowledged—and as commentators have observed—intervening Supreme Court decisions embracing broad views of executive power have left Humphrey’s Executor hanging by a thread. So when the Supreme Court let the president’s firing of Rebecca Slaughter go into effect and granted the government’s request for plenary review, including on the question of “whether Humphrey’s Executor ... should be overruled,” it seemed evident the Court was poised to overrule that decision. Such a ruling would rein in the so-called independent agencies by subjecting them to plenary presidential control. The justices’ comments at oral argument seemed to confirm Humphrey’s Executor’s fate.
At a time of expansive assertions of presidential power on many fronts, the legal and policy implications of a decision to end the independence of many regulatory agencies has generated significant discussion, including by critics who fear that it could disrupt the Constitution’s intended allocation of authorities between the president and Congress. Some have voiced concern that it would threaten the independence of the Federal Reserve—at stake in another clash on the Supreme Court’s docket over the president’s effort to fire Lisa Cook. Many—including justices who have dissented from prior decisions sustaining presidential power—worry that the Supreme Court is about to give the executive “massive, unchecked, uncontrolled power” and that the decision could “destroy the structure of government.”
Overruling Humphrey’s Executor would inevitably consolidate even more power in the president. And that development could spark efforts to hunt for other doctrinal ways to rebalance power between Congress and the executive.
One doctrinal hook, explored during oral argument in Slaughter, would be to revive and reinvigorate nondelegation doctrine. As the Court recently explained, that is the principle that, while Congress can vest some discretion in executive agencies to carry out laws, Congress cannot give away its legislative power to administrative agencies. For many decades, the Court has taken a broad view of Congress’s power to delegate policymaking authority to independent agencies without violating constitutional guardrails.
That broad view of delegation to agencies, on the one hand, and the Court’s protection of independent agencies, on the other, has its origins in New Deal-era cases, where the two principles were formed in tandem. On the same day that the Court handed down Humphrey’s Executor, it also decided A.L.A. Schechter Poultry Corp. v. United States. These cases form two sides of the same separation-of-powers coin. Each decision regulated the distribution of functions between Congress and the president by limiting presidential power and strengthening independent agencies. As a unit, they reveal a picture not visible in isolation: judicial approval of broad delegations to independent administrative agencies and disapproval of unchecked presidential regulatory power.
With Humphrey’s Executor potentially leaving the scene, a rule that revives limits on delegation to administrative agencies may be worth another look. Schechter Poultry has lay largely dormant since the New Deal. Is it time for it to wake up? While the possibility may be alluring as a means of limiting executive regulatory power, substantial reasons justify caution before taking that path.
A.L.A. Schechter Poultry Corp. v. United States and Nondelegation Doctrine
Schechter Poultry considered a prominent feature of the New Deal’s keystone legislation, the National Industrial Recovery Act, which authorized the president to approve “codes of fair competition” for a trade or industry. The plaintiffs in the case, the Schechter brothers, were convicted of violating provisions of the Live Poultry Code, which imposed detailed and comprehensive restrictions on the poultry industry in New York City.
A unanimous Supreme Court held that the Recovery Act’s authorization of the president to promulgate “codes of fair competition” like the Live Poultry Code impermissibly delegated congressional authority. It pointed to the fact that the phrase “codes of fair competition” was undefined by statute or common law, leaving the definitional work to the president himself: The codes depended on “the will of the president,” who could exercise complete discretion. Significantly, the Court contrasted that statute with the one at issue in Humphrey’s Executor, the Federal Trade Commission Act. That act charged the FTC—a multimember “quasi-legislative” and “quasi-judicial” body—with adjudicating “unfair methods of competition” via specific administrative procedures that were subject to judicial review. This, the Schechter Poultry Court made clear, unlike the Recovery Act’s presidentially dictated “codes of fair competition,” was a permissible delegation of congressional authority.
On the surface, Schechter Poultry is about delegation of legislative power, but it stems just as much from concern about excessive presidential power. The Court rejected Congress’s vesting broad authority in one man—the president—without the safeguards of the administrative-agency process, which required factual findings and availability of judicial review of the decisions of a bipartisan and expert independent agency. The Court explained that “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.” Rather, as Justice Benjamin Cardozo put it in his Schechter Poultry concurrence, the power the Recovery Act vested in the president was “delegation running riot.”
But the independence of regulatory agencies that the Court upheld in Humphrey’s Executor may soon be a relic of the past. All of this raises the question: Can the dangers of excessive presidential authority in a post-Humphrey’s Executor world be mitigated by reviving the nondelegation principles set forth in its contemporary companion case, Schechter’s Poultry?
Nondelegation Doctrine’s Promise and Limits
Reviving nondelegation doctrine may seem an attractive solution to what would be a dramatic expansion of presidential power at the expense of Congress’s latitude to create independent agencies. Congress gave those agencies vast powers to make policy in reliance on their independence and bipartisan structure, an arrangement that harnessed administrative expertise and limited presidential control. If Humphrey’s Executor is overturned, one might argue, a counterpart doctrinal move requiring Congress to legislate with greater specificity is essential to avoid placing excessive power in the president’s hands.
But nearly a century after Schechter Poultry, that may not be a feasible path—or at least not one that successfully wrests power from the president and restores it to Congress. A nondelegation doctrine requiring greater congressional specificity is not self-executing; it would have force only when interpreted and applied by the courts. And more recent doctrinal developments such as the major questions doctrine and the abrogation of agency-deference principles suggest that reviving nondelegation doctrine might not shift power to Congress, but instead transfer power to the judiciary—and most prominently to the Supreme Court.
The Intelligible-Principle Standard
As an initial matter, reviving nondelegation doctrine runs counter to recent precedent. The last examples of vigorous enforcement of nondelegation principles came in 1935—in Schechter Poultry and an earlier decision in Panama Refining Co. v. Ryan. Although they have not been expressly overruled, modern opinions treat them as outliers. Today, when considering the constitutionality of a congressional delegation of power to an agency, the Court asks simply whether Congress has provided an “‘intelligible principle’ to guide what it has given the agency to do.” And that standard is generally met when “Congress has made clear both ‘the general policy’ that the agency must pursue and ‘the boundaries of [its] delegated authority.’” These are not high bars. For example, a delegation to an agency to regulate the broadcasting industry under the broad umbrella of the “public interest” has passed muster.
Given the modern Court’s delegation-friendly intelligible-principle standard, Schechter Poultry and Panama Refining have been confined to their facts, including in two recent Supreme Court decisions, one in 2025 and one in 2019. Both cases presented the justices with an opportunity to reevaluate the intelligible-principle standard; in both cases, the majority declined to do so. Given that track record, it seems unlikely that the Court would be prepared to suddenly resuscitate the nondelegation doctrine as a means of rebalancing the separation of powers post-Humphrey’s Executor.
But even if the Court were inclined to change course in such a manner, deeper challenges would remain. A potent nondelegation principle is not easy to administer, and its disruption of the status quo could unsettle much regulatory law. In addition, limiting the president’s power to make policy by enforcing strict nondelegation principles could generate an ironic unintended consequence: It might limit some powers of the presidency only by transferring those powers to the courts.
The Challenges of Enforcing Nondelegation Rules
As to workability, one of the driving forces beyond the delegation-friendly intelligible-principle approach is that drawing the line between permissible and impermissible delegations entails judgments of degree for which courts are not well suited. As Justice Antonin Scalia put it, “[o]nce it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle, but over a question of degree.” Given that reality, Scalia believed that “the doctrine of unconstitutional delegation” is not “readily enforceable by the courts.” If nondelegation principles are to be given teeth, concrete and judicially administrable rules would have to be developed, and it is not obvious what they would be.
In his 2019 dissent in Gundy v. United States, Justice Neil Gorsuch tried to craft judicially manageable tools for nondelegation review. He would confine permissible delegations to three categories: when an agency is tasked to “fill up the details” of a statutory scheme; when it finds facts to apply congressionally defined rules; and when it performs nonlegislative responsibilities that are already within the scope of that branch’s authority. But the application of those principles is far from self-evident. To take one glaring example, what is the difference between “filling up the details” of a scheme and promulgating rules to implement a general standard? It would take a significant amount of judicial work over many cases to fill in the details of that test, while Congress labors in the dark. And the results are likely to appear either arbitrary or harmful to effective governance. As Justice Elena Kagan explained in her dissent in Loper Bright Enterprises v. Raimondo, examples abound where Congress can identify its policy concerns but cannot anticipate the circumstances to which they apply—hence the need for substantial agency discretion.
As for the disruptive potential of nondelegation with teeth: For nearly a century, Congress has legislated against a backdrop of permissible intelligible-principle delegations, and the Court has upheld those statutes. Thousands of pages in the Code of Federal Regulations reflect that regime. If nondelegation law were upended, it could raise questions about the validity of existing regulations that would ripple through the economy and society. And prudential limitations on overruling precedent might be severely tested if the Court is asked to revisit holdings under the ancient regime. Would old agency rules be struck down if the Court concluded that past congressional delegations were infirm? Or would a new constitutional delegation test somehow be given only prospective effect? Those forms of uncertainty are themselves reason to hesitate before overhauling and enforcing a strict nondelegation doctrine.
Shifting Power to the Courts
Finally, judicial moves purporting to empower Congress may in fact simply shift power to the courts. For example, the Supreme Court’s major questions doctrine is ostensibly designed to identify issues the Court believes are too significant for an agency to decide without specific authority from Congress. That sounds legislatively empowering. And indeed, Justice Gorsuch has characterized the major questions doctrine as a kindred spirit to his view of nondelegation doctrine, in that each “guard[s] against unintentional, oblique, or otherwise unlikely delegations of the legislative power.” But rather than force the legislature to make big-ticket policy choices, the major questions doctrine may simply strip agencies of authority implied by the statutory text and, given congressional gridlock, effectively leave the courts with a policymaking role, as the dissent in Loper Bright pointed out. A revamped nondelegation doctrine might have the same effect—invalidating congressional efforts to invoke agency expertise based on judicial assessments of how much specificity is enough.
A similar story emerges from the Court’s decision in Loper Bright. There, the Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and abrogated the long-standing principle that courts will defer to an agency’s reasonable interpretation of ambiguous terms in the statute it administers. Loper Bright’s overt rationale is that statutory interpretation—saying what the law is—is the domain of courts, not agencies. But the effect may not be to improve Congress’s control over policy by giving effect to statutory commands; instead, it may be to shift power from agencies to courts. As Justice Kagan wrote in dissent in Loper Bright, “[i]t is now the courts rather than the agency that will wield power when Congress has left an area of interpretative discretion.”
Similarly, the effect of developing a renewed nondelegation framework, for the purpose of restraining the president’s regulatory power, may simply transfer power to the courts. Deciding when delegation has “run riot” and when it simply draws on executive expertise to fill in details will empower courts to draw lines that previously rested with the politically accountable branches. The result would hardly enhance legislative accountability for major policy choices. Vesting courts with vast discretion to decide when Congress has gone too far in authorizing agencies to implement statutory policies is a high price to pay for limiting unchecked executive power over agencies.
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The Court may soon shed light on whether nondelegation doctrine emerges from the shadows to play an active role in checking executive power. In the litigation over President Trump’s reliance on the International Emergency Economic Powers Act (IEEPA) to impose massive global tariffs, one of the key issues is whether IEEPA constitutes an unlawful delegation of legislative authority. Learning Resources, Inc. v. Trump poses the question whether tariffing authority can be found in a statute that does not use that term. The challengers argue against that implication, relying on a host of interpretive doctrines—including nondelegation principles. During argument on Nov. 5, 2025, Justice Gorsuch—echoing an argument in an amicus brief filed by Professor Vikram Amar—noted that one reason to hesitate before finding a virtually unlimited delegated power to tariff is that once Congress is found to have bestowed that power on the president, political realities may make it exceedingly difficult, if not impossible, to retrieve. Whether that concern drives the Court to find reasons for demanding more than an “intelligible principle” for some or all delegations remains to be seen. But the fact that it is a live issue underscores that the massive expansion of presidential power under recent decisions has triggered a search for potential counterweights.
Justice Scalia once wrote that the Constitution envisions that “the basic policy decisions governing society are to be made by the Legislature.” Finding doctrinal ways to reinforce legislative primacy is no easy matter, particularly with unitary executive theory on the rise. But the serious threat to democracy that comes from unchecked power in the hands of the president demands reconsideration of doctrines that will restore the separation of powers to its central constitutional role in preserving liberty. The challenge for contemporary constitutional theory is to find a viable doctrine that could limit that power. A decision overruling Humphrey’s Executor will only increase the stakes of that quest.
