Gorsuch, Tariffs, and the Delegation Ledger
Towards a comprehensive and useful ledger of Congress's delegations of authority.
The Supreme Court’s recent decision in Learning Resources, Inc. v. Trump is, on its face, a tariffs case. As you know, the Court held that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs, no matter how “unusual and extraordinary” the asserted emergency may be.
But if you read Justice Gorsuch’s concurrence (scroll down about 28 pages), it’s hard to miss that he’s doing something else: he’s trying to reframe a familiar fight about the administrative state as a problem of institutional design. The Wall Street Journal editorial board noticed that too, describing the concurrence as an effort to push Congress back toward its constitutional role rather than a simple “power grab” by courts.
I want to take Gorsuch’s framing seriously, because it aligns with something regulatory economists have been saying for decades, and because it points toward an underappreciated bottleneck in the nondelegation revival project:
Congress can’t reclaim power if it doesn’t know how much power it has actually ceded.
That sounds abstract. It’s not. It’s a data problem. And it’s similar to the problem that motivated the creation of RegData in the first place (namely, how can we know the economic effects of the growing administrative state if we can’t quantify it?), and it happens to be the subject of the Nondelegation Project.
Sidenote: I’m speaking at a webinar on Thusrday, February 26, at 2:00 PM ET, about the Nondelegation Project, which (among other things) uses AI to produce a comprehensive inventory of Congress’s statutory delegations and tells you whether the language in the statute is vague, or specific. I’ll be joined on the panel by Pacific Legal Foundation’s legal scholar Luke Wake, former director of Virginia’s Office of Regulatory Management Reeve Bull, Vulcan Technologies (an AI RegTech startup) founder and CEO Tanner Jones, and moderated by PLF’s Mitchell Scacchi. Register for the webinar here.
Back to Justice Gorsuch…
“Not anti-administrative state. It is pro-Congress.”
Gorsuch’s most quoted line will probably be this one:
“The major questions doctrine is not ‘anti-administrative state.’ It is pro-Congress.”
That’s not a rhetorical flourish. It’s a claim about incentives and institutional drift.
Gorsuch leans explicitly into what economists call the principal–agent problem: principals sometimes give their agents broad delegations because they can’t anticipate every eventuality, but that same looseness creates the risk that delegees will “exploit” ambiguity to expand their own discretion. Courts, in Gorsuch’s telling, sometimes have to develop default rules to protect the principal, because inevitably situations will arise that were not anticipated in the original “contract,” or in this case, the statutory delegation from Congress to an agency. Or maybe in the original, original contract — the Constitution.
This is, basically, principal–agent theory in judicial prose.
And it fits cleanly with how a systems-oriented approach to the regulatory process: the outcomes we get aren’t just a function of “good intentions” or “expertise”; they’re a function of process design and whether that design aligns incentives between Congress (principal), regulators (agents), and the public.
So far, so familiar.
The part that isn’t familiar, at least in the public debate, is what Gorsuch says near the end. He’s not just defending a doctrine. He’s defending the legislative process itself as the stabilizing mechanism:
laws that survive the legislative process “tend to endure,” letting people plan “when the rules” don’t “shift from day to day”… and the legislative process is a “bulwark of liberty.”
Economists would agree that policymakers should prioritize policies that let people plan and let businesses make long term investment decisions. If that is the goal, and durable, democratically accountable lawmaking is the mechanism that gets us there, then the relevant question isn’t merely whether courts should enforce clearer statements.
The relevant question is whether Congress has the information infrastructure to legislate clearly and to oversee what happens after it delegates.
Right now, it clearly does not.
The missing balance sheet of delegated power
Congress has a Congressional Budget Office. It has budget baselines, scoring conventions, reconciliation instructions, and a whole ecosystem built around a single idea:
if you don’t measure something, you can’t manage it.
Now you could argue that even if you can measure something, politics still prevents good management. That’s where the structure of the system comes into play—checks and balances, separation of powers, etc. But as far as even simple measurement goes, for the regulatory state (arguably at least half of modern governance), we mostly operate without an equivalent ledger.
That’s one reason debates about “the administrative state” tend to be so airy. People argue in abstractions because they don’t have a shared set of facts about:
how many binding constraints exist in the regulatory code,
which agencies are producing them,
which industries they target,
what their impact is, and
which statutory delegations are doing the most “work” in the background.
This is the gap RegData and its umbrella project, QuantGov, were designed to address.
A brief refresher on RegData as regulatory accounting
A decade ago, regulation was often “measured” by counting pages in the Federal Register. QuantGov’s “about” page captures why that’s noisy—pages include non-regulatory material, and even deregulation can require pages.
RegData instead counts regulatory restrictions directly in the Code of Federal Regulations (CFR) using terms that usually signal binding constraints—“shall,” “must,” “may not,” “prohibited,” “required,” and similar phrases. And it also (probabilistically) tells you what parts of the economy (e.g., industries such as manufacturing or home construction) are affected by those regulatory restrictions.
That yields a running tally of the “stock” of constraints—something closer to regulatory accounting than regulatory rhetoric.
A few highlights—sorry if you already know these facts, but not all my readers have seen this before:
The CFR had about 400,000 restrictions in 1970, but has grown to more than 1 million restrictions.
This accumulation of regulations over time has been shown to slow annual economic growth by nearly one percentage point.
And yes: it is genuinely hard for humans to even read the modern regulatory corpus. It would take over three years just to read the CFR.
Here’s the connection to Learning Resources:
Gorsuch is basically saying, “If an agent is claiming extraordinary power, courts should hesitate unless Congress spoke clearly.”
But clarity doesn’t come from vibes. It comes from institutional capacity—and in this space, capacity begins with measurement.
Which brings me to the next step.
From counting restrictions to tracing authority
RegData answers: How many constraints exist, which agencies are they coming from, and what parts of the economy are affected?
But nondelegation (and major questions) ultimately ask a different question:
Where did the authority come from?
If you can’t trace a regulation back to the statute that purportedly authorizes it, you can’t even begin to talk seriously about whether an agency has exceeded a delegation—or whether Congress delegated something too broadly in the first place.
That’s the core motivation behind the Nondelegation Project: an AI-enhanced database that links each CFR part to the U.S. Code sections it cites as statutory authority, and then classifies those delegations as general (broad/vague) or specific (more constrained).
AI can take a 190,000-page, 245-volume CFR and make it navigable as an interactive, searchable authority map. Such an exercise yields some descriptive facts that, to me, are another “wow” moment:
The database captures 56,000+ delegations, and about 37% are coded as general—broad, vague, open-ended grants.
The agencies with the highest number of general delegations include FERC and EPA—but the agencies with the highest percentage of general delegations include DOJ and NASA.
Using RegData’s restrictions metric, EPA is (unsurprisingly) the most pervasive user of vague statutory delegations in the dataset. EPA also happens to be the agency with the most restrictions in the CFR.
However, this is where an intriguing (and somewhat counterintuitive) point emerges:
The nondelegation problem isn’t just about “the big villain agencies.”
The early data suggest that broad delegations are not confined to the usual caricatures. Some agencies that are not central to the political imagination of “the regulatory state” still operate under a high share of general authority language.
That matters for doctrine and for reform along the nondelegation lines.
Because if you’re trying to “revive” nondelegation, or even just apply major questions more rigorously, you need to know where general delegations are concentrated and what regulatory output they enable. You need to know which statutes are authorizing the most regulations, and whether they are vague, and how vague they are.
A doctrine without an inventory is like auditing without books.
Major questions as an information-forcing rule
One of the more productive ways to read Gorsuch’s Learning Resources concurrence is as a defense of an information-forcing default rule.
In private law, default rules often exist because contracting parties can’t (or won’t) specify everything ex ante. Courts sometimes force clarity when the consequences are large, precisely to avoid opportunism and misunderstanding.
Gorsuch is telling a similar story in public law: “highly resourceful” executive actors (i.e., agencies) have incentives to exploit ambiguity; courts respond by demanding clearer authorization for extraordinary claims of power.
What’s missing in the discourse is this: information-forcing rules only work if someone has the infrastructure to produce and verify the information.
That’s why I think the most important connection between Learning Resources and nondelegation isn’t ideological. It’s operational.
If courts are going to insist on clarity in delegations (which, thankfully, seems to be the trend), we should expect:
More litigation focused on identifying the “true” statutory basis for major regulatory programs.
More strategic drafting by agencies to shore up authority citations.
More pressure on Congress to write statutes that actually specify the scope of delegated authority in a way that can be monitored.
All three of these require what the regulatory system rarely provides: a usable, public-facing map from statute → delegation → regulation → binding constraints.
That’s what RegData + the Nondelegation Project are trying to approximate.
A counterintuitive implication: this isn’t necessarily deregulatory
There’s a cartoon version of major questions and nondelegation that treats them as shorthand for “less regulation.”
That’s not obviously right.
Gorsuch’s own language is closer to: make Congress own the big decisions.
And that kind of “owning” can cut both ways:
If Congress wants a sweeping policy, it can enact it clearly and explicitly—making it more durable and less vulnerable to whiplash.
If Congress can’t agree, the doctrine blocks executive improvisation that substitutes administrative creativity for legislative consensus.
So the deeper stakes aren’t “more regulation vs. less regulation.” The stakes are:
policy by durable legislation vs. policy by delegated improvisation.
That’s why the WSJ editorial board’s framing—that Gorsuch is trying to revive Congress—lands in an important way even if you don’t share their ideology.
If you care about legitimacy, predictability, and accountability, the “revive Congress” project has to include the informational plumbing.
Where this points: an actual delegation ledger
I’m not naïve about Congress. Legislating is hard, slow, and often ugly.
But there are tangible, boring, technocratic reforms that would make “pro-Congress” doctrines less of a slogan and more of a workable governance model:
A standing, public inventory of delegations.
Treat statutory delegations the way we treat fiscal outlays: catalog them, tag them, track them, and update them. The Nondelegation Project is a prototype for what this could look like at scale.A regulatory “stock” metric in routine oversight.
Congress can’t do oversight if it doesn’t know the stock and flow of constraints. Counting restrictions isn’t perfect, but it’s comprehensive, transparent, and replicable. It captures far more of the regulatory universe than cost-benefit analysis does in practice, without any of the possibility of gamesmanship (deliberately bending the analysis to match a predetermined conclusion).Institutionalized lookback and subtraction.
Regulatory accumulation is the default setting. Absent deliberate management, the stock grows, with all sorts of negative consequences. I’ve been making this point for years.Use AI for oversight, not just for rulemaking.
AI will increasingly help identify deregulatory targets, including rules that are “authorized but not required,” or that rely on vague statutes likely to be challenged in a post-Chevron world. This is already happening.
None of this resolves the deepest normative disagreements about the administrative state.
But it does something more basic: it gives Congress, courts, and the public a way to argue from shared facts rather than from caricatures.
Closing thought
Gorsuch’s concurrence is a reminder that constitutional structure is not a museum piece. It’s an operating system. And operating systems fail when they lack feedback loops.
If major questions is going to be “pro-Congress,” then Congress needs the tools that principals use everywhere else: measurement, auditing, and the ability to see what its agents are doing.
RegData started as a way to quantify what was previously unquantified. The Nondelegation Project is an attempt to connect those quantities back to their sources of authority.
In other words: it’s an attempt to build the ledger that a “revive Congress” project presupposes.