Justices Seen Avoiding Chance to Strike New Blow to Agency Clout

The US Supreme Court isn’t likely to use a pair of newly granted cases involving a multi-billion-dollar fund as a way to reinvigorate the so-called non-delegation doctrine to curb the authority of federal agencies, administrative law experts said.

The justices Nov. 22 agreed to take up the Biden administration’s appeal of a ruling that struck down the $8 billion Universal Service Fund, which is intended to enhance phone and broadband services in poor and rural communities. They also took a related appeal brought by a nonprofit that promotes broadband access.

The court has consistently cut back on the power of administrative agencies under Chief Justice John Roberts, most notably in last term’s Loper Bright decision overturning the decades-old Chevron doctrine under which courts generally deferred to reasonable agency interpretation of ambiguous statutes.

The latest dispute provides the justices with a different avenue to constrain agencies by limiting how and when Congress can delegate its lawmaking authority to them.

Despite support from a majority of the justices, the US Supreme Court has nevertheless been “increasingly hesitant to take on the non-delegation doctrine,” said Case Western Reserve University law professor Jonathan Adler. “And there are enough wrinkles in this case so that the justices don’t have to.”

Skeptical Court

The court hasn’t used the non-delegation doctrine to invalidate a federal law since 1935. Under the current version of the doctrine, Congress can delegate its legislative authority to federal agencies if it provides an “intelligible principle” that guides the agency in carrying out its discretion.

At least five of the current justices have expressed an interest in a more robust application of the non-delegation doctrine, including Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, said the University of Houston Law Center’s David Froomkin.

The justices have so far been unable to agree on a workable rule. And because of this apparent lack of consensus, Adler said the justices have denied other cases that asked the justices to reinvigorate the non-delegation doctrine.

Potential Off-Ramp

Administrative law experts warn against reading too much into the court’s decision to take up the current case.

Whenever a lower court strikes down a federal law or program, the Supreme Court is going to review that decision, Adler said. “There was no question that the court was going to hear this case.”

Moreover, the court added an additional question for the parties to consider, suggesting that a procedural quirk might have mooted the case.

Daniel Walters, a law professor at Texas A&M University, said the added question—whether the case is moot because the challengers didn’t ask the appeals court for preliminary relief—provides the justices with a “potential off-ramp.”

They’ve “preserved some discretion to get rid of the case if it’s too difficult to come up with standard that can govern all non-delegation cases, not just this one,” Walters said.

What’s more, the appeal comes from the US Court of Appeals for the Fifth Circuit. The justices in recent terms have reined in many of the New Orleans-based court’s most conservative rulings.

Walters said it’s possible the court granted the case “to bring the Fifth Circuit back in line.”

Alternatively, several justices could be sympathetic to the Fifth Circuit’s concern over the delegation of legislative authority to private parties.

The en banc Fifth Circuit said that the agency at issue , the Federal Communications Commission, “subdelegated” the authority Congress gave it to a private corporation that’s responsible for administering the fund.

While reasonable parties can disagree about the appropriateness of Congress delegating its authority to another branch of government, Adler said delegations to private parties are “just a different beast.”

Even if the Supreme Court upholds the Fifth Circuit’s bottom line—that the Universal Service Fund unconstitutionally usurps Congress’ powers—Walters said the justices still might not say much about the non-delegation doctrine itself.

The court could write a narrow opinion that doesn’t reinvigorate the non-delegation doctrine in a consequential way, Walters said.

Muscular Doctrine

Froomkin said a narrow approach could be attractive to a majority of justices in this case, most notably because the court doesn’t need a robust non-delegation doctrine to limit the administrative state.

The court has “largely achieved that goal through the major questions doctrine,” Froomkin said.

That’s a statutory interpretation doctrine that assumes that Congress doesn’t intend to delegate its authority on issues of significant monetary or social value unless lawmakers are clear that they are doing so.

The court most recently used the major questions doctrine to strike down the Biden administration’s student loan forgiveness plan in 2023.

Froomkin said that while the major questions doctrine is the “functional equivalent of non-delegation,” it’s more politically expedient because it reflects a more limited judicial role.

It purports to carry out Congress’ will rather than limit what lawmakers can do by judicial fiat, Froomkin said.

Walters agreed. There’s “no need for the court to adopt a muscular non-delegation doctrine here.” he said.