Seven years after putting out the “bat signal” for a legal fight that would convince the Supreme Court to tie the hands of Congress, a legal organization located just outside the nation’s capital is still on the hunt for the perfect case.
This year, the New Civil Liberties Alliance is placing its bets that a courtroom battle over EPA’s phasedown of heat-trapping chemicals used in refrigeration could resurrect the nondelegation doctrine, a legal theory that has lain dormant for nearly a century.
A revival of the doctrine would embolden judges to stop Congress from handing off its legislative duties to executive agencies — something the Supreme Court has only ever done twice — and mark the next frontier in a broader campaign to dismantle the “administrative state,” or the nation’s network of regulatory bodies like EPA.
“We want Congress to be the one making decisions that affect people’s lives and liberty, and not offloading those consequential decisions to the EPA, the Department of Interior or frankly any other federal agency,” said Mark Chenoweth, president and chief legal officer of the Arlington, Virginia-based New Civil Liberties Alliance.
This term, NCLA has partnered with powerhouse Supreme Court advocates Paul Clement and Erin Murphy to make the case that Congress ran afoul of the nondelegation doctrine when it authorized EPA to refashion — and altogether exclude some companies from — the multibillion-dollar market for hydrofluorocarbons, or HFCs, a type of short-lived, but powerful, planet-warming gas used in air conditioning and refrigeration.
NCLA has argued that the American Innovation and Manufacturing Act, which Congress passed during the first Trump administration, gives EPA unfettered power to reshape the market for HFCs production and import (which is separate from rules the agency last month decided to cut back). A federal appeals court in Washington last year disagreed, prompting the group’s Supreme Court bid.
The justices will decide as soon as this month whether to make NCLA’s petition one of the roughly 60 cases they will hear next term — or add it to their massive heap of rejections.
While some justices in the Supreme Court’s conservative supermajority have shown an appetite for restoring the nondelegation doctrine, they’ve avoided doing so in recent cases.
They may continue to duck the issue, some legal scholars say.
In the last four years, the Supreme Court has solidified the major questions doctrine, which says Congress must clearly authorize agencies to act on economically and politically significant issues, such as climate change. It also ended the Chevron doctrine, which for 40 years had given agencies the benefit of the doubt on their reading of ambiguous statutes like the Clean Air Act.
NCLA was on the winning side in both cases.
Taken together, those rulings have significantly limited the power of federal regulators — without needing to revive the nondelegation doctrine and restrict Congress, said Daniel Walters, an administrative law professor at Texas A&M University.
“For some of the court’s justices,” he said, “that’s enough.”
Finding the right case
NCLA, which bills itself as a nonpartisan, nonprofit civil rights group, got its start at the dawn of the first Trump administration with the financial backing of one of Chenoweth’s former employers, billionaire Charles Koch. The group once employed the president’s former regulatory czar Jeff Clark.
While the view of NCLA on federal agency power sometimes aligns with that of the Trump administration, the group has also battled the president in court. Earlier this year, for example, NCLA was among the groups to halt the president’s emergency tariffs at the Supreme Court.
NCLA is also at odds with the Trump administration on the group’s HFCs petition.
Shortly after NCLA’s formation, the Supreme Court in 2019 skewered the hopes of critics of agency power that Gundy v. United States, a legal fight over sex offender registration, would revive the nondelegation doctrine. But in their writings on the case — which was argued before Justice Brett Kavanaugh was confirmed — some members of the court’s conservative wing hinted that they were ready to take another crack at the issue.
Around that time, Chenoweth told a Federalist Society teleforum that the “bat signal is out” for other cases on the issue.
Since that time, groups and law firms like NCLA, the Pacific Legal Foundation, Boyden Gray and Consumers’ Research have continued to press the justices in the hopes that it’s only a matter of finding just the right case for the full, conservative-dominated court to decide.
Last term, Consumers’ Research — represented by Boyden Gray — pushed the justices to revive the nondelegation doctrine in a telecommunications case. That effort failed.
The opinion revealed that Justices Neil Gorsuch, Clarence Thomas and Samuel Alito — the court’s three most conservative members — are still interested in revisiting the nondelegation doctrine, said Jimmy Conde, a partner at Boyden Gray and one of the lawyers for Consumers’ Research in the case.
But it takes at least four justices to grant a petition and five to build a majority ruling.
“It’s to be determined whether Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh are going to be willing to strike down a statute,” Conde said.
In a recent brief urging the justices to reject NCLA’s HFCs petition, the Trump administration pointed back to the telecommunications case.
“[T]here is no sound reason to revisit a test that this Court considered and applied just last year,” wrote Solicitor General D. John Sauer, the president’s top Supreme Court advocate.
From public lands to agency power
Leading the charge behind NCLA’s HFCs Supreme Court petition is Zhonette Brown, an attorney whose resume is studded with work on major Western lands cases.
Brown, who grew up on a farm in Nebraska, said her upbringing instilled in her an appreciation for the free-market system and a healthy dose of skepticism over government interference — a philosophy that now drives her work on administrative law.
In her prior role at the Mountain States Legal Foundation, Brown worked alongside the Trump administration to defend cuts to the Bears Ears National Monument in Utah and fought a water diversion project intended to safeguard a tiny, endangered fish.
Brown said her work litigating the water diversion project — which flooded a 40-acre Nevada church campground, known as the “Patch of Heaven” — opened her eyes to the power of the federal government to intrude upon individual rights.
Before the case, “I would have said no way is that actually happening,” she said. “But it is.”
Brown’s experience on public lands issues is woven into her current body of work.
In addition to the HFCs petition, NCLA has thrown its weight behind a separate request for the Supreme Court to wield the nondelegation doctrine against a federal law that has opened the door for Interior’s Bureau of Land Management to criminally punish off-highway vehicle enthusiasts for riding dirt bikes across public lands.
Brown is also one of the NCLA lawyers challenging the National Park Service’s criminalization of BASE jumping in national parks without clear direction from Congress.
A repaired nondelegation doctrine would help the courts correct such overreach, she said.
“At a minimum, repair means there have to be standards that the courts and the public can look at to tell whether the agency has met and conformed to the will of Congress,” Brown said.
Bat signal is still out
There’s no guarantee that NCLA’s HFCs petition will become a Supreme Court case, but nondelegation doctrine critics say it’s only a matter of time before the justices bite on the issue.
Murphy, one of the Supreme Court lawyers working on the petition in partnership with NCLA, said she’s optimistic about the odds of a grant, given the case gives the justices room to reach a very broad or narrow ruling.
At the very least, she said, they could say the doctrine’s intelligible principle test — which says Congress must provide an executive agency with clear and defined boundaries for its actions — is alive and well and that the AIM Act violates that standard.
“That alone would be a huge thing,” said Murphy, a founding partner of Clement & Murphy.
If the justices grant the petition, they could also decide the intelligible principle test — which the Supreme Court has not used to strike down a federal law since 1935 — isn’t the right measure at all to determine an illegal delegation of power.
“There’s value to coming to the court with a case where we’re able to say this is so extreme that you can get there by a variety of paths,” Murphy said.
If the court rejects NCLA’s petition, there may be another case that gets the justices to revisit the issue, said Luke Wake, an attorney at the Pacific Legal Foundation.
“It might be that with the right set of facts, they might be open to it,” he said.
Chenoweth said the Supreme Court has created more questions than answers with rulings — and lack thereof — on the nondelegation doctrine.
“They haven’t solved the problem yet, and it’s a problem that cries out for resolution,” he said. “So they’re going to have to take it up again — whether it’s this case or another one.”
