The US Supreme Court appears unlikely to utilize two newly granted cases involving a substantial multi-billion-dollar fund to revitalize the non-delegation doctrine as a tool to rein in federal agencies, according to Bloomberg Law. The court’s acceptance of these cases, which question the integrity of the $8 billion Universal Service Fund aimed at broadening phone and broadband services in underprivileged and rural areas, sparks considerable interest among administrative law scholars.
Chief Justice John Roberts’ leadership has often been associated with decisions that limit the authority of administrative bodies. This was notably seen in the previous term’s Loper Bright decision, which dismantled the longstanding Chevron doctrine, a principle where courts traditionally relied on agencies’ interpretation of ambiguous statutes.
Despite the potential for the latest case to revisit the non-delegation doctrine, a legal principle not employed to invalidate federal law since 1935, experts cite several factors indicating the current court’s reluctance to do so. This doctrine allows Congress to delegate legislative authority to agencies if there is an “intelligible principle” guiding the agency’s discretion.
Experts such as Case Western Reserve University’s Jonathan Adler point out that although interest in a robust application of non-delegation exists among Justices Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, achieving consensus on a coherent rule remains elusive, leading to the court’s hesitance in tackling similar cases.
The Supreme Court’s decision to hear this case, originating from the Fifth Circuit, which has seen several conservative rulings curtailed in recent terms, likely stems from procedural norms rather than a definitive stance on the non-delegation doctrine itself. The case also presents a procedural angle, questioning whether issues have been mooted due to a lack of preliminary relief request in the appeals process.
Moreover, several justices may find the delegation of legislative power to private entities, as in the case of the Federal Communications Commission allegedly “subdelegating” authority, concerning. Even if these cases lead to a ruling against the Universal Service Fund, it might not significantly rejuvenate the non-delegation principle. Experts suggest a narrower ruling could prevail, which aligns with the Court’s recent tendencies to rely more on the major questions doctrine as an alternative means of limiting agency power.
This doctrine presupposes that Congress is clear when it intends to delegate authority over major issues of economic or societal import. Its application has been notably observed in the recent blocking of the Biden administration’s student loan forgiveness plan. Analysts such as David Froomkin from the University of Houston Law Center argue that this approach offers a pragmatic means of judicial intervention without overtly challenging legislative boundaries. Texas A&M’s Daniel Walters concurs, noting the reduced necessity for a robust non-delegation doctrine under current judicial strategies.