The Supreme Court Should Take Another Crack at Limiting Runaway Agencies

T he Supreme Court has done a lot in the past few years to rein in executive overreach, whether from the president or the administrative agencies. By applying the guidance of the major-questions doctrine in interpreting statutes, the Court has concluded on multiple occasions that presidential and agency actions were never authorized by Congress — in other words, that the executive branch was claiming powers never delegated to it. By overturning the Chevron doctrine, the Court also disabled a tool commonly used by agencies to keep courts from looking too closely at the statutory basis of their powers.

One traditional tool for restraining executive overreach that the Court has yet to fully revive is the nondelegation doctrine. There are powers Congress can’t give the executive (although Justice Clarence Thomas has argued that these are few and limited, at least insofar as they are within Congress’s own powers to make law in the first place), and there are powers it hasn’t given the executive (which have been the subject of the major-questions cases). And there is a more limited set of Article II powers that the executive has, whether Congress authorizes them or not. In between lie situations where Congress told the executive branch to deal with some issue that is within the Article I powers of Congress, but in terms so unspecific that it amounts to letting the agencies make up whatever laws they want.

Under the nondelegation doctrine, whose philosophical grounding goes all the way back to John Locke, the Court has long required that an act of Congress lay down an “intelligible principle” that an agency must follow in promulgating rules, so that it is possible for a court to judge whether the agency stayed within its mandate to apply the law rather than make it. The phrase, notably, comes from J. W. Hampton, Jr. & Co. v. United States (1928), a case involving the tariff power.

The doctrine has its scholarly critics, and the Court on a number of occasions (including the Learning Resources Trump tariff case) has ducked the issue by deciding the cases on other grounds. Still, the Court as recently as Federal Communications Commission v. Consumers’ Research (2025), in an opinion by Justice Elena Kagan, reaffirmed the doctrine’s continuing vitality:

Legislative power, we have held, belongs to the legislative branch, and to no other . . . [but] Congress may vest discretion in executive agencies to implement and apply the laws it has enacted—for example, by deciding on the details of their execution. . . .

To distinguish between the permissible and the impermissible . . . we have long asked whether Congress has set out an intelligible principle to guide what it has given the agency to do. . . . Under that test, the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. . . . The guidance needed is greater, we have explained, when an agency action will affect the entire national economy than when it addresses a narrow, technical issue. . . . But in examining a statute for the requisite intelligible principle, we have generally assessed whether Congress has made clear both the general policy that the agency must pursue and the boundaries of its delegated authority. . . . And similarly, we have asked if Congress has provided sufficient standards to enable both the courts and the public to ascertain whether the agency has followed the law. [Quotations and citations omitted]

Ironically, the intelligible-principle test has not provided much guidance to lower courts in deciding these questions. Moreover, as Justice Oliver Wendell Holmes famously remarked, “The life of the law has not been logic: it has been experience.” Doctrines develop teeth only when they are applied in particular cases that illustrate where the lines are drawn. It has been a long time since the Court struck down a delegation, and in Consumers Research, over a vigorous dissent by Justice Neil Gorsuch (the doctrine’s biggest advocate on the Court), the Court found that Congress had imposed meaningful constraints on a tax on telecom companies levied by the FCC by detailing what services the tax was supposed to fund, which thereby limited what could be collected to support those services.

Moreover, Thomas isn’t the only advocate of the doctrine who has concerns about where and how it applies. Justice Brett Kavanaugh, concurring in Consumers Research, added that the doctrine should carry more force when powers are delegated not to the elected president but to “independent” agencies. Those agencies, however, may be a good deal less independent after the Court’s soon-impending decisions on the president’s power to remove their heads.

These are, however, all the more reasons why the time is ripe to give some real clarity to the limits. The lassitude of the modern Congress is more, rather than less, reason to do so, because old, vague statutory delegations are unlikely to be revisited by lawmakers.

The Choice Refrigerants Case

That’s where two petitions on the Court’s doorstep enter the picture. One of them, RMS of Georgia, LLC d/b/a Choice Refrigerants v. EPA, is scheduled to be considered at the Court’s conference this Thursday. The other, Pheasant v. United States, is now fully briefed and may be considered at another conference soon. The two petitions present overlapping but also complementary questions, so the Court would do well to hear both of them. At a minimum, if the justices have any concerns about whether Pheasant might be a cleaner vehicle to address the issue, they should hold onto the RMS case until they can consider both petitions side by side.

As I detailed in 2024, Pheasant involves an extraordinarily broad delegation of lawmaking authority to the Bureau of Land Management (BLM) within the Department of the Interior to create crimes on federal lands that, in states such as Nevada, cover as much as two-thirds of the land mass of the state. BLM has been given almost no limiting guidance as to what it can or cannot make a crime. The Ninth Circuit, however, reversed a lower-court decision and upheld the BLM’s powers in this area based on fairly bland pronouncements about the strong federal power over federal land. But nobody disputes that the criminal rules at issue would be legitimate if Congress made them. Pheasant raises a specific issue that is not present in RMS, which is whether the nondelegation doctrine has any greater force when agencies make rules backed by criminal sanctions.

The fiddlement at issue in RMS is more prosaic than creating a criminal code covering the majority of a state with no guidance whatsoever from Congress, but it nonetheless illustrates what manner of mischief the agencies can get up to when not constrained by law. RMS arises from the American Innovation and Manufacturing (AIM) Act of 2020, which established a cap-and-trade system to be run by the EPA for the goal of reducing the production of hydrofluorocarbons (“HFCs”). For companies such as the plaintiff, Choice Refrigerants, this was an about-face from prior regulatory regimes that promoted HFCs. Congress is allowed to change course, but its policies necessarily imposed burdens on regulated parties — yet, it gave the EPA too little guidance on how those burdens should be allocated.

The “cap” part of cap-and-trade turns on “allowances”: how much HFC each manufacturer was permitted to produce. The statute provided that the allowances would get gradually smaller over time. The “trade” part allows producers to buy or sell allowances, creating a market mechanism in which the most efficient users can acquire more allowances. But that just underscores the fact that allowances are a form of property and currency.

Who gets the allowances? As the petition explains, Congress basically handed the EPA the legal equivalent of a shrug emoji:

The AIM Act does not even instruct EPA to allocate allowances as “reasonably necessary or appropriate,” or “fairly and equitably,” or in the “public interest.” It offers literally nothing to guide EPA in deciding how to allocate allowances that are a matter of life and death for many companies in the multibillion-dollar industry the Act regulates. . . .

The Act instructs that EPA “may” allocate allowances for certain “essential uses” for up to five years if the agency makes two statutorily enumerated findings. . . . And, for the first five years, it requires EPA to allocate allowances as needed for the continued production of a short list of specialized products. . . . But the Act does not provide any guidance as to how EPA should go about allocating vital allowances among the many companies whose uses or products do not fit into either of those narrow categories. It simply commands that EPA “shall issue a final rule . . . phasing down the production of [HFCs] in the United States through an allowance allocation and trading program in accordance with this section,” without supplying any tools for EPA to use in determining who should be able to keep — or perhaps even start — producing or consuming HFCs or to what extent. [Quotations and citations omitted]

It fell to the Biden administration (ominous music) to decide how to do this. Guess what happened next? Margot Cleveland explains:

The EPA’s final rule from October 5, 2021, . . . expressly provided multiple times that, in allocating market share, it could consider “equity.” . . . The EPA later issued a final rule in July of 2023 to cover allocation of hydrofluorocarbons from 2024 through 2028. That final rule continued to provide for allowances to “new market” entrants, prejudicing Choice Refrigerants and other [existing] businesses. . . . The EPA had previously proposed handing out allowance by “prioritizing applications for new market entry from ‘minority- and woman-owned small businesses’ that may have faced ‘challenges entering the HFC import market due to systemic racism, market-access barriers, or other challenges. . . .’” While the final rule only spoke of the EPA considering “equity, human dignity, fairness, and distributional considerations” in establishing market share, the government’s reasoning — if upheld — would allow federal agencies to decide winners and losers based on race or sex.

The Biden EPA claimed that it had the authority to construe the statute as it liked under Chevron, and it had to scramble later to retcon its basis for these rules. The point here is not the legally objectionable nature of these racial and other invidious categories, but the fact that the complete abdication of any intelligible guidance by Congress allowed the EPA to make rules to hand out goodies to favored constituencies — that’s supposed to be the job of Congress, under the “only we can do that to our pledges” principle — based on criteria that have nothing whatsoever to do with the text of the law that Congress enacted. Readers of the Gospels will recognize the pattern of behavior here in the unfaithful steward using the favor-doling power for his own unscrupulous purposes when the master is away.

The Court may have been too lenient in Consumers Research, but at least in that case, there was no issue of how a burden, once set according to criteria vaguely described by Congress, would be allocated to the telecom companies. Here, that’s exactly the question. And the fact that the Trump administration now has different friends and different preferences in doling out favors and punishments doesn’t change the fact that it shouldn’t have this power any more than the Biden administration did. The odor of boilerplate in the solicitor general’s response brief suggests its lack of enthusiasm for defending this case. It’s time for the Court to tell the agencies that “intelligible” means something more than “Whatever floats your boat.”