This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

The idea behind the nondelegation doctrine is sound: Congress should not delegate legislative power to executive branch agencies. But its implementation leaves much to be desired. Nearly every nondelegation case acknowledges there’s a theoretical boundary but then finds that Congress hasn’t crossed it here. Only twice has the Supreme Court found a law violated the nondelegation doctrine, in 1935, both involving a statute that literally allowed President Roosevelt to cartelize the entire economy and make rules at whim. The modern rule allows Congress to give agencies significant authority as long as it includes an “intelligible principle” to guide exercise of that authority. Perhaps more than any other doctrine, this toothless standard has permitted the modern atrophy of our legislative branch, concentrated power in unelected bureaucrats, and enabled the imperial presidencies of the 21st century.