Progressives, conservatives, investors and Supreme Court-watchers are all anxiously awaiting the court’s decisions later this spring in two cases—American Hospital Association v. Becerra and West Virginia v. Environmental Protection Agency—which some experts have warned could sound a death knell for the “administrative state.” Not so fast: the authority of regulators is likely to be further limited, but not gutted. That’s the broad takeaway I got from moderating a recent panel for the Brookings Institution of constitutional and administrative law experts—Professors Anne Joseph O’Connell, Susan Rose-Ackerman, Ilya Wurman and public interest lawyer and author Simon Lazarus.
Of the two cases, only West Virginia appears likely to trigger constitutional issues. In that case, multiple state attorneys general challenged the constitutional authority of the EPA to set broad carbon dioxide emissions standards for greenhouse gas emissions outside the “fence” of power plants. This challenge has aroused intense interest because of the possibility, with the court now dominated by six Republican presidential appointees, three of them by President Trump, that the court could drastically limit regulators’ authority.
Nonetheless, some of the Six seem intent on radically beefing up the nondelegation doctrine. This is most evident in Gundy v. U.S. in 2019 where a plurality of the court upheld the delegation to the U.S. attorney general of the authority to require the registration of sex offenders convicted before the Sex Offender Registration and Notification Act was enacted by Congress in 2006. Justice Neil Gorsuch, in a dissenting opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, argued that giving such broad power to the attorney was delegation “running riot.” Justice Elena Kagan, author of the plurality in Gundy, responded bluntly that “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” That warning applies not just to SORNA, but to many other agencies, including even the Federal Reserve, whose statutory mandate likewise is broad—to assure “stable prices and maximum employment,” terms that Congress has not defined.
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