Since 1935, the nondelegation doctrine has not been used by the Supreme Court as a constitutional basis to strike down any delegation of legislative power. The Supreme Court continues to recognize the doctrine, but little is required to satisfy its limitations. Pursuant to the doctrine, a delegation of legislative authority is constitutional if Congress establishes the nation’s fundamental legislative policy and leaves only the “gap filling” to an agency.

Through the years, courts have used different language to express this idea. Some cases speak in terms of “standards”; others refer to an intelligible principle. Regardless, the idea is the same: Congress must provide sufficient standards to an agency to guide it (and limit its discretion) in the administration of the power it has been delegated. It appears that the nondelegation doctrine has limited applicability in those zones of authority shared by the president and Congress, most notably, foreign affairs and war.

Even though the Supreme Court has been liberal in permitting delegations of legislative authority, the nondelegation doctrine is not entirely ineffective in limiting congressional delegations. Congress is aware of the restriction and, presumably, it limits the amount of lawmaking power it transfers to agencies as a result. In addition, lower courts enforce the doctrine.