Supreme Court Limits Federal Agency Power, Conservative Justices Show Interest in Reviving Nondelegation Doctrine

The Supreme Court has reduced the power of federal agencies like EPA to defend themselves against legal challenges, prompting conservative lawyers to argue that Congress has given too much power to federal agencies. The nondelegation doctrine, a legal theory that prevents lawmakers from passing too much of their legislative authority to executive agencies, has not been used by the court since 1935. At least two conservative justices have indicated they are interested in resurrecting this doctrine. The court’s decision in June to overturn Chevron deference could signal a shift in the approach. However, there is no appetite for a sea change in the law on the nondelingation doctrine yet.