The Supreme Court on Friday agreed to hear a challenge to the Environmental Protection Agency’s authority to regulate power plant emissions, in a case that legal scholars say could undermine Congress’s constitutional authority to delegate power to federal agencies. Some argue that such regulation — not just by the EPA, but in President Biden’s vaccine mandate as well — is unconstitutional because of a somewhat arcane legal doctrine called the “nondelegation doctrine.” This theory holds that Congress cannot delegate broad policymaking authority to government agencies.
Why does this argument matter? Our research finds that if the Supreme Court were to invalidate either the EPA’s authority or the vaccine mandate under this doctrine, it might unravel nearly every major law Congress has passed since World War II. Nearly every one of these laws involves delegating authority to U.S. agencies.
Let’s look at this more closely. The nondelegation doctrine was an approach the Supreme Court sometimes relied on to strike down laws until the 1930s. According to this constitutional doctrine, Congress can delegate powers to government agencies only if it also gives those agencies clear, specific directions about what actions to take. Because legal commentators regularly say the Supreme Court has not used this doctrine to strike down any policies since the 1930s, they usually describe it as “moribund.”
But did it ever exist? Recent research shows, in fact, that the Supreme Court did not often use this doctrine before the 1930s — and that the Founders themselves often delegated authority to executive agencies, indicating they believed delegation was consistent with the Constitution.
Nevertheless, as legal scholar Nicholas Bagley has pointed out, U.S. state and federal courts are increasingly relying on this doctrine to challenge and strike down laws. What’s more, several members of the Supreme Court, led by Justice Neil M. Gorsuch, have signaled that they’re open to striking down laws based on this doctrine. In fact, the court’s majority mentioned concerns about delegation when it struck down the Centers for Disease Control’s eviction moratorium.
Their next opportunity to use it might come with the EPA case or when opponents challenge the Biden administration’s vaccine mandate after regulations are issued, since in both cases some opponents are relying explicitly on the doctrine. Or they could use it when, as expected, they hear Kelley v. Becerra, the latest challenge to the Affordable Care Act, which is making its way through the courts and close observers expect to succeed in the U.S. District Court.
So what would a reinvigorated nondelegation doctrine do to the U.S. government? Justice Elena Kagan wrote in her minority opinion in Gundy v. United States that if the Court starts striking down congressional delegations of authority, “then most of Government is unconstitutional.”
It would mean the end of every major law passed since World War II, folks. The Voting Rights Act, the Civil Rights Act, the Fair Housing Act, the Affordable Care Act, nearly 75 years of robust federal action would come to an end.
Red state Americans, us Black and Brown folks out here in Trump country? We would truly be at the mercy of the states. We'd have no protections at all. We'd be well on our way to permanent fascism, with Jim Crow and second-class status the law of the land for millions who would never be allowed to leave.
And this is where we are headed, and have been for years.