Joe Biden promised us an FDR-sized presidency—starting with bold action to halt the spread of COVID-19, end the worst economic downturn in decades, and stop the climate crisis. Biden could use regulation and executive action to move quickly to decarbonize the economy, cancel student loan debt, and raise wages. But a Biden administration has an even bigger problem than two long-shot special elections in Georgia: the new 6–3 conservative majority on the Supreme Court may soon burn down the federal government’s regulatory powers.
At least five conservative justices have signaled that they are eager to revive the “non-delegation doctrine,” the constitutional principle that Congress can’t give (“delegate”) too much lawmaking power to the executive branch. On paper, the rule requires Congress, when delegating power to an agency, to articulate an “intelligible principle” (like air pollution regulation needed “to protect public health”) to guide the agency’s exercise of that power. But in practice, the nondelegation doctrine is effectively dead. The court has only struck down two statutes on nondelegation grounds—and none since 1935.
Today, most of the government’s work is done through the “administrative state,” the administrative agencies and offices, like the Environmental Protection Agency, the Department of Labor, and the Department of Education, which issue regulations and enforce laws. Congress doesn’t have the capacity to pass laws that nimbly address complex, technical, and ever-changing problems like air pollution, COVID-19 exposure in workplaces, drug testing, and the disposal of nuclear waste. So Congress tasks agencies staffed with scientists and other specialists to craft regulations that directly address those problems. This division of responsibility—Congress legislates policy goals and agencies implement them effectively—is the foundation of functional government.
Take, for example, the Clean Air Act. In 1963, Congress ordered the EPA to regulate air quality standards “at a level that is requisite to protect public health.” Based on that authority, the EPA routinely issues lifesaving regulations limiting lead in the air, air pollutants coming from chemical plants, and, critically, greenhouse gasses. Biden can use the CAA to start tackling the climate crisis on Day One. The dormant nondelegation doctrine is the foundation of thousands of regulations across dozens of agencies, allowing agencies to make technical decisions about, say, hospital reimbursement rates to administer Medicare or wage and hour rules that protect workers from exploitation.
But last year, in a case called Gundy v. United States, four conservative justices announced that they wanted to bring the nondelegation doctrine back to life. Gundy arose out of a national sex offender registry law that explicitly applied to everyone convicted after the law took effect but delegated authority to the Department of Justice to determine when and how it applied to people convicted before the law took effect. Herman Gundy, who was convicted before the registry law took effect, argued that the law violated the nondelegation doctrine. The court upheld the law. But in a dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Neil Gorsuch wrote that the court should revive the dormant nondelegation doctrine.* Gorsuch’s dissent argued that Congress may only delegate policymaking power to agencies under three narrow circumstances: to “fill up the details” of a legislative scheme; for executive fact-finding to determine the application of a rule; and to assign nonlegislative responsibilities to the executive and judicial branches. Justice Samuel Alito wrote separately to say he’d like to “reconsider” the nondelegation doctrine—just not in a case about sex offenders’ rights.
Justice Brett Kavanaugh wasn’t on the court in time to hear Gundy. But last fall, in a separate opinion, he signaled his support for Gorsuch’s new, revived nondelegation doctrine. That makes five votes for resurrecting the nondelegation doctrine and taking a hatchet to landmark labor, environmental, and consumer protection law—even without Justice Amy Coney Barrett, who, administrative law experts warn, shares the conservative justices’ hostility to the administrative state.
As Justice Elena Kagan pointed out in Gundy if the conservative justices bring back the nondelegation doctrine, “most of Government is unconstitutional.” Exactly how much government would be unconstitutional, though, isn’t clear. What does Gorsuch mean when he writes that Congress may give agencies the power to “fill up the details” of a legislative scheme? What does Kavanaugh’s test—that Congress may not delegate “major policy questions” to agencies—actually forbid in practice? Would Biden’s EPA be permitted to issue regulations about greenhouse gasses or new, dangerous chemicals leaking into our public waters? Congress relies on OSHA experts to set workplace safety standards that are “reasonably necessary or appropriate to provide safe or healthful employment.” Does that “delegate” too much power to OSHA to act fast to issue COVID-19 safety standards for transportation, grocery stores, and meatpacking workers, as Joe Biden has promised to do? What about the EEOC’s power to interpret anti-discrimination to address workplace dress codes that discriminate against Black women’s natural hair? What about the FDA’s authority under the Family Smoking Prevention and Tobacco Control Act to subject “any” tobacco products to federal regulations—is “tobacco products” narrow enough under Gorsuch and Kavanaugh’s tests? Or would an FDA decision to regulate Juul just like cigarettes be a “major policy question” outside agencies’ powers?
The uncertainty alone could give special interests like fossil fuel companies and Juul grounds to sue to stop, or at least hold up, lifesaving regulations issued by the Biden administration. They’re already trying—just last year, e-cigarette company “Big Time Vapes” argued that the FDA’s power to regulate “any” tobacco product violated the nondelegation doctrine. The U.S. Court of Appeals for the 5th Circuit rejected that challenge. But in its opinion, the 5th Circuit hinted that similar challenges could soon be successful, as the Supreme Court “might well decide—perhaps soon—to reexamine or revive the nondelegation doctrine.” And if that happens, all bets are off.
Such a decision would not only threaten existing regulations. It endangers every piece of future progressive legislation, too. Big, transformative legislative packages, like a Green New Deal or “Medicare for All,” would require a million and one technical decisions that Congress is poorly positioned to make. Biden and Congress can pass legislation phasing the United States toward 100 percent clean energy by 2030—but someone will have to actually sweat the details about which engines can be included in which cars.
Government doesn’t work without the administrative state. But that’s sort of the point. The conservative justices have long been hostile to regulation and executive action. And now they may finally have the votes to bring virtually any regulation to a halt. At least five justices are ready to drop a 1,000-pound anvil on any Biden administration rule that displeases them.
Correction, Dec. 2, 2020: This article originally misstated that Alito joined Gorsuch’s dissent. It was Justice Clarence Thomas.