That idea is closely related to the major questions doctrine but goes even further, not only requiring agencies to identify explicit statutory authorization for major actions but also, in many instances, finding that agencies cannot take major actions at all. If embraced in its entirety, the nondelegation doctrine could spell the end of agency power as we know it, turning the clock back to before the New Deal.
In another case, this one argued in early October, the court is considering the truly radical argument that the funding structure of the Consumer Financial Protection Bureau is unconstitutional. In 2020, a 5-to-4 court ruled part of the structure of the C.F.P.B. unconstitutional, but the agency was able to continue functioning. In this challenge, the federal government argues that the challengers’ position, if accepted, would not only mark the end of the C.F.P.B. but also “invalidate much of the federal budget.” It might also throw into question the constitutionality of other federal agencies, including the Federal Reserve.
In yet another case about agency power, either this term or next, the court is likely to take up a challenge to the Food and Drug Administration’s approval and subsequent regulation of mifepristone, one of the drugs used in medication abortion, the most common method of abortion in the country. The Supreme Court has put on hold lower court rulings that invalidated parts of the F.D.A.’s approval, but that’s no guarantee of how the court would ultimately rule in the case. A decision even partly siding with the lower courts would not only have catastrophic consequences for access to abortion; it would also, according to a number of drug manufacturers, result in a dramatic shift in drug development and approval processes — which would have implications, the manufacturers say, for their ability to invest in and develop new medicines. It would furthermore likely destabilize the F.D.A.’s approval process, which has long been seen as the global gold standard of drug safety.
In some of these cases, the challengers claim that they are the ones on the side of democracy — that by seeking to gut the power of agencies, they are merely trying to return power to Congress, the branch of government that is the most democratically responsive and accountable. But embracing these arguments would not result in the court returning power to Congress but claiming enormous and novel powers for itself.
Because these moves have been made gradually, often in cases that fly under the radar, it’s easy to miss just how quickly and dramatically the Supreme Court has moved the law in this area — and it’s far from finished. To be clear, the court may turn away some of the challenges discussed above; a mortal wound to the administrative state may not come this term at all. Chief Justice John Roberts is a shrewd political actor, and he very likely appreciates that the political consequences of ending access to mifepristone or adopting a theory that could doom the Fed could damage Republican fortunes in a presidential election year.