The Great Missing Branch
6th November 2026
In Wayman v. Southard (1825), Chief Justice John Marshall observed that Congress could not “delegate to the courts or to any other tribunal powers which are strictly and exclusively legislative,” while acknowledging the difficulty of distinguishing those subjects that “must be entirely regulated by the legislature itself” from those of lesser importance in which “a general provision may be made and power given to those who are to act under such general provisions to fill up the details.” The governing principle was that Congress must retain the authority to determine the ends to be pursued and the essential trade-offs to be accepted; only then does electoral responsibility remain a meaningful constraint.
This governing principle remained largely in force for more than a century. The Progressive movement of the late 19th and early 20th centuries, together with its New Deal successors, sought systematically to relocate all but the most general legislative judgments from Congress to administrative agencies.