Supreme Court pressured to stop Congress from handing power to agencies

By Pamela King | 04/08/2024 01:18 PM EDT

Conservative lawyers are asking the justices to take the next step in curbing the “administrative state.”

Chief US Supreme Court Justice Neil Gorsuch poses for the official photo at the Supreme Court in Washington, DC on October 7, 2022. (Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)

Two new Supreme Court petitions are appealing to a desire voiced by Justice Neil Gorsuch to revive a legal doctrine that stops Congress from delegating its legislative power to agencies like EPA. Olivier Douliery/AFP via Getty Images

CHICAGO — Bit by bit, conservative interests have convinced the Supreme Court to pare back the federal government’s regulatory powers, whittling away agencies’ ability to interpret ambiguous laws and preventing them from making rules on major issues without clear permission from Congress.

Now, at least two pending petitions before the nation’s highest bench are urging the justices to take the next step of blocking Congress from handing off power to agencies like EPA in the first place.

“They might not say yes to them,” Kirti Datla, director of strategic legal advocacy at Earthjustice, said of the petitions during a Thursday conference panel hosted by the American Bar Association’s environment section. “But there’s a very obvious hope to get these kinds of cases before the court.”


The petitions she cited — Allstates Refractory Contractors v. Su and Consumers’ Research v. Federal Communications Commission — ask the Supreme Court to resurrect the long-dormant nondelegation doctrine, which says one branch of government cannot authorize another to carry out its powers.