Legislators shirk their duty too often. Can the Judicial Branch whip the Legislative Branch back into shape?

That’s the question Congressional Institute president Mark Strand and research director Timothy Lang ask in a substantial article for the quarterly journal National Affairs. The courts might give congressional reform efforts a lift due to the nondelegation doctrine, a constitutional principle that legislators may not assign their law-making functions to others. It’s an idea that predates the founding of the country, as English political philosopher John Locke wrote about it in his Second Treatise of Government:

The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.

Locke’s Second Treatise of Government, section 141, via Project Gutenberg

Though Congress should not delegate its legislative powers to others, it arguably does that when it enacts laws that give the Executive Branch the broad and almost unconstrained authority to set policies and draft regulations governing the people. And in the past couple of years, some justices on the Supreme Court, most notably Justice Neil Gorsuch, have indicated a willingness to strike down laws that violate the nondelegation doctrine.

Philosopher John Locke (left) wrote about nondelegation prior to the nation’s founding and Supreme Court Justice Neil Gorsuch (right) might breathe new life into the idea. (Images via Wikimedia Commons)

The Court has not ruled any law unconstitutional on nondelegation grounds since the time of the New Deal. So those who support a strong and active Congress would cheer a change in how the Supreme Court decides nondelegation cases. But the likelihood that there will actually be a seismic shift in nondelegation jurisprudence is doubtful, Strand and Lang conclude—and Congress should be doing its own job anyways. They conclude:

It’s not the job of the Supreme Court to save an unwilling Congress from itself. Lawmakers hoping to restore Congress to its rightful place in our constitutional system, therefore, cannot wait for the Court to act. Instead, they must begin the process of reform so that they can more effectively protect and preserve the people’s power, which is not Congress’s to give away.

For the full article in the Summer 2021 edition of National Affairs, click here.