The outcome of an upcoming Supreme Court case could resurrect a legal theory — one that has lain dormant since the Great Depression — that would constrain the power of federal regulators and Congress to tackle urgent issues like climate change.
During oral arguments Wednesday, the right-leaning nonprofit Consumers’ Research will make the case that the justices should revive the nondelegation doctrine, which prevents Congress from handing too much power to federal agencies like EPA. The justices have used it only twice to invalidate legislation under former President Franklin D. Roosevelt’s New Deal and have since discontinued strict application of the doctrine.
A Supreme Court ruling that brings back the full power of the nondelegation doctrine would mark the next step in a yearslong campaign to dismantle federal regulatory power and comes as the Trump administration seeks to stifle both executive agencies and the lawmakers who authorize them to act.
“It’s a limit on how much Congress can give away,” Kevin King, a partner at the firm Covington & Burling, said of the nondelegation doctrine, “and on the flip side, how much policymaking has to be done inside Congress, as opposed to on a delegated basis by the agencies.”
