The Supreme Court has launched the next battle over the power of federal regulators.
In a short order Friday, the justices granted a pair of cases that have the potential to limit how much power Congress can hand off to EPA and other agencies.
The court’s move follows its decisions earlier this year to overturn the Chevron doctrine and give opponents of federal rules more time to sue. The justices in 2022 also advanced the “major questions” doctrine to prevent federal regulators from handling consequential matters without express permission from Congress.
At issue in the cases the court granted Friday — Federal Communications Commission v. Consumers’ Research and SHLB Coalition v. Consumers’ Research — is the nondelegation doctrine, which says Congress may not be able to give that permission — even if it wants to.
The Supreme Court last used the doctrine to strike down New Deal-era legislation in 1935. But some members of the court’s conservative supermajority have recently called to revive it.
For years, the court has instead allowed Congress to delegate power to agencies when it can provide an “intelligible principle” to guide regulators.
The matter now before the Supreme Court was brought to the justices by the Biden administration, which in July lost its case before the conservative-dominated 5th U.S. Circuit Court of Appeals defending an FCC program to fund affordable telecommunications access to rural and low-income areas.
Consumers’ Research, the opposing party in the case, had previously asked the justices to revisit their loss on the matter in a separate federal appeals court.
The court could also choose to resolve the case in a more limited fashion, as it has done in other recent cases that raise nondelegation issues.
In addition to the questions FCC and SHLB Coalition presented to the Supreme Court, the justices also asked the parties to file briefs on whether the case is moot due to challengers’ failure to seek preliminary relief before the 5th Circuit.
