On January 23, I participated in a Federalist Society teleforum on “Nondelegation and the Limits of Agency Authority after Consumers’ Research and Loper Bright,“ with AEI’s Adam White and Ilan Wurman of the University of Minnesota Law School.
In my remarks, I explained how the decisions in both FCC v. Consumers’ Research and Loper Bright Enterprises v. Raimando are entirely consistent with what I have called “The Delegation Doctrine.” Indeed, I might even suggest that these two decisions largely confirm the hypothesis.
In short, the claim is that, while the Supreme Court has been unable or unwilling to reinvigorate the nondelegation doctrine, it has heightened its focus on the question of delegation and, in particular, carefully scrutinizes the extent to which federal agencies are exercising power that Congress affirmatively delegated to them. This principle, I suggest, unifies wide swaths of the Court’s recent administrative law jurisprudence, including its handling of Chevron, the Major Questions Doctrine, and its resolution of nondelegation claims. This argument grows out of a serious of articles I have written in this space and is summarized in this article from the Harvard Journal of Law & Public Policy which was written and published before the Loper Bright decision.
For those interested in the discussion of this and related questions, video of the forum is below:
