Turning the Nondelegation Doctrine Inward: Why Judges Must Stop Delegating Core Judicial Power

The separation of powers, which divides governmental authority among the three federal branches, is the core structural feature of the American government. One of the biggest challenges to this system today is the massive amounts of delegated power held by unelected administrative agencies. The following analysis will establish that the main principle used to limit that power, the nondelegation doctrine, must also be applied internally to the federal judiciary. The doctrine's essential constitutional command, which prohibits the transfer of delegated power, serves as a safeguard against arbitrary rule, and must be as strictly enforced against the courts as it is against Congress.

The specific problem contemporarily is that judges routinely empower non-judicial actors, such as magistrates, special masters, or even private attorneys, to perform functions that are “strictly and exclusively judicial.”1 This practice of intra-branch delegation undermines the constitutional requirement that judicial power be exercised by judges who are protected by life tenure and salary, intended to be the pillars of constitutional accountability. The result is that unelected and often temporary officials are granted authority to make legal findings, set probation conditions, resolve custody disputes, and ultimately exercise potentially coercive state power, often without the full consent of the litigants concerned or proper appellate review.1 This analysis extends the current conservative legal movement to restore structural constitutionalism, following the rise of the Major Questions Doctrine and the reduction of judicial deference to agencies, which collectively force fundamental policy decisions back into the hands of the accountable, legislative branch.2

The nondelegation doctrine is not found in a single clause of the Constitution, but rather comes from the overall structure of the document itself. It is based within the Vesting Clauses, which allocate all legislative power to Congress (Article I, Section 1) and all judicial power to the federal courts (Article III).2 The core idea, which dates back to Enlightenment-era philosopher John Locke, is simple: power delegated by the people to one branch cannot be handed over to any outside individual or group, however tangential, without the express will of the constituency.3 Chief Justice John Marshall affirmed this principle early in American history, and it was formalized in the 1928 precedent of J. W. Hampton, Jr. & Co. v. United States, which created the “intelligible principle” test.2 This test holds that Congress can only delegate authority if it provides a clear, guiding standard for the receiving branch to follow in enforcement. While the doctrine was largely ignored for most of the twentieth century, the current Supreme Court has signaled a clear and renewed interest in enforcing the nondelegation principle against administrative agencies.3 This revival is part of a larger shift in conservative legal thought that seeks to ensure that unelected bureaucrats do not write policy, setting the stage for applying these same principles of non-transferability and accountability to the judiciary’s own functions.

The most compelling support for a judicial nondelegation rule is found in the historical record of judges improperly delegating their authority. The most dramatic early examples demonstrate what scholars describe as an “impermissible abdication of judicial power.”1 In one clear historical case, a judge presiding over a murder trial appointed a member of the bar to run the proceedings while the judge left the courthouse.4 Although that specific delegation was struck down by an appellate court, the fact that such a transfer of power was even attempted confirms the need for a clear, restrictive rule against delegating core judicial functions.1 While delegating entire trials is rare today, the underlying problem remains widespread. Judges transfer judicial functions to non-judicial officials “thousands of times each and every day.”1 These “mini-delegations” are not just paperwork; they involve core acts of legal judgment and coercive power, such as empowering non-judges to make specific legal findings, delegating the authority to set or modify probation conditions for criminal defendants, or resolve complex custody disputes.1 Ultimately, this practice violates the fundamental rule of law. Judicial delegation risks compromising due process and impartiality because litigants are subjected to binding decisions made by officials who are unelected and unaccountable, lacking the constitutional protections of a federally-appointed judge. This directly undermines the “steady, upright and impartial administration of the laws” that Hamilton deemed essential to the judiciary's role.6

To solve this problem of constitutionality, the judiciary ought to adopt a nondelegation rule based on the same “intelligible principle” standard used for Congress. This framework requires that any time a judge delegates a task, it must be strictly limited by clear, narrow, and objective criteria set in advance.5 This prevents the delegation from allowing for an effectively unconstitutional transfer of judicial policymaking power. Such a judicial nondelegation doctrine must draw a clear line between purely administrative tasks (like managing a case schedule) and the core function of adjudication or the exercise of coercive power (such as issuing sanctions or setting sentences). Functions that involve the latter must remain exclusively within the authority of the federally-appointed judge, as is enumerated in Article III, these being the core acts of judicial power that require constitutional accountability.1 Adopting this doctrine would far from detriment the courts; rather, it would restore constitutional clarity, mandate accountability, and reinforce the separation of powers as envisioned by the Founders.

The battle against the administrative state is fundamentally a battle to restore the separation of powers. The recent reduction of judicial deference and the emergence of structural doctrines, like the Major Questions Doctrine, confirm the judiciary's commitment to this structural revival. It is both necessary and historically-justified for this same constitutional scrutiny to be turned inward. By recognizing and enforcing a true nondelegation principle within its own branch, the judiciary can solidify its role as the ultimate defender of the rule of law, ensuring that the critical power of final judgment rests exclusively within the hands of accountable constitutional officers.

Edited by Sophia Berg

Endnotes

[1] S. Alan Iuliano. “A Nondelegation Doctrine for the Judiciary.” Alabama Law Review, Vol. 75, Issue 1 (2023). https://law.ua.edu/wp-content/uploads/2023/12/2-Iuliano-51-91.pdf.

[2]  “Vindicating the Nondelegation Doctrine: FCC v. Consumers’ Research’s Four Perspectives.” Cato Supreme Court Review (2024-2025). https://www.cato.org/supreme-court-review/2024-2025/vindicating-nondelegation-doctrine-fcc-v-consumers-researchs-four-perspectives.

[3]  “The History of the Doctrine of Nondelegability.” Legal Information Institute, Cornell Law School. Accessed October 15, 2025. https://www.law.cornell.edu/constitution-conan/article-1/section-1/the-history-of-the-doctrine-of-nondelegability.

[4] Meredeth v. People, 84 Ill. 479, 484–85 (1898).

[5]  Thomas G. West. “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government.” The Heritage Foundation. 

[6] Alexander Hamilton. The Federalist No. 78.