Published
May 26, 2026
In the Declaration of Independence, the Continental Congress faulted the British government "[f]or suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever." This was one of several protests that the Declaration lodged against actions that frustrated the North American colonies’ authority to legislate for themselves. The colonists were outraged by both Parliament and the King, who “refused his Assent to Laws, the most wholesome and necessary for the public good.”
That experience helps explain why legislative power rests with the people’s elected representatives. The President may veto legislation, but even then, Congress retains ultimate authority to override such vetoes.
Bringing the Fight Forward
Today, threats to the people’s ability to legislate through their chosen representatives come from a source the Founders could never have imagined and would have found dismaying: the modern administrative state. For decades, federal agencies within the Executive Branch have made aggressive, creative efforts to bypass Congress by seizing legislative power in the guise of regulating. Too often, Congress has acquiesced in or even abetted these efforts, diffusing political accountability and creating incentives for abuse and overreach. As the Chamber said in a 1989 amicus brief, “unelected administrative officials are a constitutionally inadequate substitute for congressmen.”
For nearly 50 years, the Chamber has fought agencies’ attempts to usurp legislative power. For example, we have argued for curbing the now-abandoned doctrine of Chevron deference and for properly applying what is now known as the major questions doctrine, which affirms that agencies may not discover unheralded power in vague statutes to regulate vast sectors of the American economy. When an agency claims the authority to resolve major policy questions that Congress has not clearly assigned to it, the agency is effectively stepping into Congress’s shoes.
We have therefore argued for revitalizing the nondelegation doctrine, the foundational constitutional-law doctrine that prevents Congress from giving away its core power to enact law. In Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001), we argued that a provision of the Clean Air Act was an unconstitutional open-ended delegation, at least as construed by EPA. We later turned our attention to the need for a reinvigorated nondelegation doctrine, explaining in a 2025 Supreme Court brief that a toothless nondelegation doctrine “that is virtually impossible for Congress to violate” has led “the Executive [to] become the branch primarily responsible for setting the rules that American businesses and individuals must follow.” That is not a task the Constitution assigns to the administrative state, and for good reason.
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Our efforts to curtail the administrative state extend across many areas of substantive law. During the Biden Administration alone, we successfully challenged the FTC’s attempt to ban noncompete agreements nationwide—an act of legislating that belongs solely to Congress. We successfully fought back against the CFPB (an agency that constitutes “a veritable issue-spotter of constitutional law violations,” as we said in a 2025 filing) as well as the FCC’s attempt to impose sweeping new rules without clear statutory authorization. So too for the SEC’s attempt to compel speech on politically charged nonfinancial topics and the NLRB’s efforts to fundamentally redefine the “joint employer” standard. The Litigation Center has struck back to enforce the simple proposition that Article II agencies have the power to execute the law, not make it.
Taking the Fight to the Future
This fight is entering a new phase. The judiciary must now implement the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron deference. Since then, the Chamber has filed a series of briefs advancing a proper understanding of Loper Bright to prevent evasion of the Court’s decision and ensure that the line between Congress and the administrative state is respected. The Litigation Center will continue to aggressively defend that line and other principles rooted in our constitutional order, challenging governmental overreach across time and agencies to defend the rule of law.
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About the author
Daryl Joseffer
Daryl Joseffer is president at the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce. A former principal deputy solicitor general, Joseffer has argued 12 cases in the U.S. Supreme Court and briefed many more. He has argued dozens of appeals in other courts across the country.
