Thread by @nycjayjay

Not to freak anyone out, but there are still cases to come, including one that could shake the power of the federal government to its core. It’s called West Virginia v. EPA, and the most extreme ruling would declare that Congress lacks the power to delegate authority /1

to federal agencies to implement policy.

Under existing law, Congress may delegate its regulatory power to an administrative agency, but it must provide an “intelligible principle,” or a standard by which the agency must exercise its quasi-legislative powers. Agencies /2

have traditionally met this standard with ease.

But recently conservative courts have resurrected the non-delegation doctrine to strike down acts by agencies that would easily have passed muster before. If applied in a draconian manner, the non-delegation doctrine could /3

end federal government as we know it, if the Court actually went so far. As Justice Kagan said in a case in 2019, if the defendant’s “delegation is unconstitutional, then most of government is unconstitutional.”

Kagan was writing for the plurality of four liberals, joined by /4

Justice Alito in a concurrence that has always bothered me. “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort,” he wrote, teasing the idea of non-delegation to his fellow
/5

conservatives. “But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”

Since then, two more conservatives, Kavanaugh and Barrett were added to the Court. Where they stand is /6

unclear. (Kavanaugh had not been seated at the time of oral arguments in that case so he couldn’t vote.)

Prior to these two recent extremist decisions on gun regulation and abortion, I would not have bet that SCOTUS would dare a seismic shake up between the other branches /7

of government using the non-delegation doctrine. But it’s certainly unusual that it released Dobbs first; momentous decisions usually get announced last in the typical SCOTUS calendar. That’s why I’m a bit nervous. What is the Court planning with the EPA decision? /end