The U.S. Supreme Court recently made waves by overruling the longstanding Chevron deference doctrine, a move that opens a new frontier in challenging agency authority. In its current term, the court is weighing a question that could have similarly significant implications: How much latitude can Congress grant an agency without running afoul of the non-delegation doctrine? This issue came to the forefront during the court’s hearing on FCC v. Consumers’ Research.
The non-delegation doctrine had been dormant since the 1935 Supreme Court decision that invalidated a federal statute on these grounds. However, the doctrine was rekindled in 2019 when several justices expressed a willingness to revisit it during Gundy v. United States. The mere fact that the Supreme Court has opted to grant certiorari in the FCC case suggests that the non-delegation doctrine is back in play.
During oral arguments, the justices appeared open to adopting a more stringent standard for non-delegation than the current “intelligible principle” test. Justices considered a proposed three-part test, initially suggested by Justice Neil Gorsuch, which suggests stricter limits on the delegation of legislative powers to federal agencies. Acting Solicitor General Sarah Harris also offered a new standard aimed at ensuring defined statutory language.
The discussion focused on potential consequences for federal programs that rely on open-ended legislation. Several programs, including postal services and Federal Reserve operations, could face challenges if the court adopts a stricter non-delegation standard. The case, which poses high stakes for government operations, could pave the way for further legal challenges to agency authority, contingent on how much “open-ended power” Congress grants agencies.
If the Supreme Court does not reach a consensus on a new test, it might issue a narrowly tailored decision on the specific facts of the FCC case. Such an outcome would leave the door open for future litigation to explore the boundaries of congressional delegation.
The court’s decision, expected by June, is likely to impact ongoing and future litigation. Legal practitioners should consider preserving non-delegation arguments across both the “intelligible principle” test and the framework suggested in the Gundy dissent. With the potential revival of the non-delegation doctrine, now is an opportune time to evaluate agency programs that may be ripe for challenge or defense, signaling a potential shift in how administrative law will be contested in the courts.
The FCC case, docketed as No. 24-354, suggests these issues will remain dynamic as the Supreme Court continues to sculpt the legal landscape of federal agency authority.