Now that the Supreme Court has pared back the power of federal agencies like EPA to defend themselves against legal challenges, conservative lawyers are crafting their next fight to stifle federal regulators.
In several recent environmental lawsuits, the Pacific Legal Foundation, a frequent Supreme Court litigant, is making the argument that Congress has handed too much power to federal agencies to — for example — block roadbuilding through a national forest in Alaska, impose federal wetlands protections and halt projects like the Pebble copper and gold mine.
The lawsuits invoke the nondelegation doctrine, a legal theory that bars lawmakers from passing too much of their legislative authority to executive agencies.
The Supreme Court hasn’t used the doctrine since 1935, but conservative lawyers believe the justices may be poised to revive it — especially after deciding in June to overturn Chevron deference.
“This is the next frontier of separation of powers,” said Luke Wake, an attorney with the Pacific Legal Foundation, which focuses on individual liberty and property rights. “This is definitely something we’re pushing in our litigation.”
The stakes of reviving the doctrine could be monumental.
While the Supreme Court in recent years has focused on limiting the power of unelected regulators who make the rules that the rest of the nation must follow, a reemergence of the nondelegation doctrine would impose new requirements on Congress — the branch of government that the judiciary views as most accountable to voters.
At least two conservative justices have recently indicated that they are interested in resurrecting the doctrine.
In July, Justice Clarence Thomas — joined by Neil Gorsuch — said he would have voted to grant a nondelegation case that targeted the “nearly unfettered” power of the Occupational Safety and Health Administration to write permanent safety standards for U.S. businesses.
And he said most of his colleagues appear ready to tackle the issue in a future case.
Thomas pointed to the court’s June 2019 decision in Gundy v. United States, in which he, Gorsuch, Chief Justice John Roberts and Justice Samuel Alito expressed interest in taking a fresh look at how the court determines whether Congress gave federal agencies the “intelligible principle” needed to guide exercises of authority.
Gundy was decided before Justice Brett Kavanaugh joined the court, but Thomas noted in July that his colleague wrote in December 2019 that the nondelegation issue “may warrant further consideration.”
Taken together, Wake said, the court’s writings on the nondelegation doctrine indicate that litigants cannot “take for granted anymore that the intelligible principle test is going to be treated as toothless.”
Still, the court has yet to take the plunge.
The justices had an opportunity to address a nondelegation claim in the recent case Securities and Exchange Commission v. Jarkesy, which inhibited the power of federal agencies to handle legal matters internally.
They decided the case in June without touching the nondelegation issue.
“There are a couple members of the court who have expressed interest in this, but there’s been no broader appetite yet for a sea change in the law on the nondelegation doctrine,” said Jennifer Fischell, a partner at the law firm MoloLamken. “It’s not to say that they won’t ever do that, but they had an opportunity to go there in recent cases, and they didn’t.”
Wake said he believes the justices are biding their time, waiting for the right case to make its way through the courts.
After all, he said, that’s the way it has worked in many of the cases the Pacific Legal Foundation has brought to the justices.
“We’ve been to the Supreme Court,” he said. “We’re repeat players there.”
In many of those cases, he said, the Pacific Legal Foundation “had to file dozens of petitions” before the justices agreed to hear its clients’ arguments.
SCOTUS’ next shot
The Supreme Court’s most immediate opportunity to dig in on nondelegation claims may come from a telecommunications case that recently made its way through a federal appeals court in Louisiana.
In July, the full slate of active judges of the 5th U.S. Circuit Court of Appeals handed down a 9-7 ruling that said Congress has given too much power to the Federal Communications Commission to fund affordable telecommunications access to rural areas, low-income customers and high-cost regions.
“Vague congressional delegations undermine representative government because they give unelected bureaucrats — rather than elected representatives — the final say over matters that affect the lives, liberty, and property of Americans,” said Judge Andrew Oldham, a Trump appointee, writing for the majority.
“Overly broad delegations also obscure accountability,” he continued. “When elected representatives shirk hard choices, constituents do not know whom to hold accountable for government action.”
In one of the dissents, five judges — almost all of them Democratic appointees — said the decision from their colleagues in the majority takes a view of congressional delegations that leaves the political branches “powerless to govern.”
The en banc opinion reversed a prior ruling by a three-judge panel of the 5th Circuit and conflicts with decisions in nearly identical cases in two other federal appeals courts — a phenomenon known as a “circuit split,” which can increase the odds of Supreme Court review.
Earlier this summer, the justices turned away petitions stemming from the other FCC cases in the 6th Circuit and 11th Circuit. The pleas were filed by Consumers’ Research and were backed by some of the same lawyers who advocated for the Supreme Court to revitalize the major questions doctrine in the landmark 2022 climate case West Virginia v. EPA.
In the 5th Circuit FCC case, a Supreme Court appeal would need to originate from the federal government, the losing party in the en banc decision. Petitions from the solicitor general’s office traditionally carry more weight with the justices than pleas from other parties, which generally have about 1 percent chance of making it on the Supreme Court’s calendar.
The FCC in late August asked the 5th Circuit to hold off on finalizing its en banc decision to give the solicitor general time to file a Supreme Court petition. The filing is due by the end of September.
Consumers’ Research has also asked the justices to reconsider denial of its appeals from the 6th Circuit and 11th Circuit cases. On July 25, Consumers’ Research notified the justices of the 5th Circuit’s en banc opinion.
“Given this development,” it wrote, “the Court should grant rehearing.”
Ramifications
The impact of a potential nondelegation doctrine revival depends not just on the Supreme Court’s appetite for revisiting the issue but also on how the justices would rule.
Legal observers say the court’s recent administrative law rulings may have taken the pressure off the justices to elevate nondelegation. They also note that revisiting the matter would potentially upend about a century of legal precedent.
“Obviously it’s not unheard of for the Supreme Court to go back on things that have a long pedigree, but there’s also the question of what would motivate them to do that — especially in a world where they have just overturned Chevron and they’ve added the major questions doctrine as a real tool that does something similar,” said Fischell, of MoloLamken.
Under the major questions doctrine in West Virginia, the conservative supermajority said that Congress must clearly authorize EPA and other agencies to regulate matters of vast economic and political significance.
A revival of the nondelegation doctrine could further limit regulators by imposing similar requirements on Congress when it hands off power to agencies — but on any issue.
“If the court embraces our view of the nondelegation doctrine, it would mean agencies can’t just go out and search for any sort of open-ended language to justify any rule they might want,” said Wake, of the Pacific Legal Foundation.
He added that such a ruling would put the onus on lawmakers to act — a line of thinking that has raised alarm for environmental and advocacy groups who say that legislators shouldn’t be responsible for complex matters best left to expert agencies and that Congress is often mired in political gridlock.
Wake countered, “If courts tell them they have to do their job, Congress is more likely to step up.”
