The Supreme Court’s zeal to reduce the agency’s power on a new term

Fresh off a landmark U.S. Supreme Court decision that struck down federal agencies’ power to regulate businesses, big government foes are pushing an even bolder agenda.

As the court prepares to begin its new term next month, conservatives are laying the groundwork to further dismantle government authority. More issues are headed to court, providing new avenues for undercutting the administrative state, regardless of who wins the presidential election.

Four weeks after the court overturned a 40-year-old legal precedent that formed a basis for the regulation, liberal Justice Elena Kagan said the conservative majority believed the regulation should be “restrained.” Kagan appealed three times at the end of the court’s last term in cases that placed new constraints on regulators.

“The court has made it clear that it just thinks there are too many agency regulations,” Kagan told a judicial conference in California in July.

By some lights, future issues could be even more important. One set of cases threatens a host of laws that allow agencies to set clean air standards, set workplace safety rules and determine what constitutes an unfair trade practice. A second targets the independence of the Securities and Exchange Commission and possibly even the Federal Reserve.

The new court term officially opens on October 7, although the justices are likely to get a head start a few days before, granting review in a number of new cases. Here’s what’s on the horizon in the court’s ongoing campaign against the regulators:

The doctrine of non-delegation

For years, conservatives have tried to revive the nondelegation doctrine, a legal theory the Supreme Court last invoked in 1935 in two rulings that blunted Franklin D. Roosevelt’s New Deal. The core of the argument is that the Constitution vested legislative power in Congress, and lawmakers cannot simply surrender that authority.

The debate raises a more fundamental issue than Loper Bright v. Raimondo, the June 28 ruling that overturned the so-called Chevron doctrine and said judges should no longer defer to agencies the meaning of ambiguous laws. While Loper Bright was concerned about how much power agencies have under statutes passed by Congress, the non-delegation doctrine questions whether lawmakers had the authority to enact many of these measures in the first place.

Loper Bright was “a fight on the edge of the real question,” said John Yoo, a law professor at the University of California, Berkeley, who clerked for conservative Justice Clarence Thomas. “The question at the heart of it is how far Congress can go in transferring the power to make laws from itself to the executive branch, to the bureaucracy.”

The Court has softened the non-delegation doctrine in recent decades, saying Congress can delegate its powers as long as it establishes an “intelligible principle” for agencies to follow. Plenty of statutes have been passed on that notion — empowering agencies to set “reasonable rates” or take “necessary or appropriate” action — and could suddenly become legally vulnerable if the court asks Congress to be more explicit.

“Virtually every agency operates under statutes that are broad delegations of power,” said Erwin Chemerinsky, dean of the University of California, Berkeley’s law school.

Conservatives on the court have said several times in recent years that they are interested in taking up the issue. They’ll get a chance to start with a pending appeal challenging the $8 billion in fees the Federal Communications Commission imposes on monthly phone bills to subsidize service for poor and rural people. The court could say as early as next month whether it will hear that case in the next term.

Agency independence

On the same day the court issued one of its no-delegation rulings in 1935, the justices gave the green light to the independent agencies that now proliferate in the US government. The unanimous ruling, known as Humphrey’s Executor v. United States, said Roosevelt did not have the power to fire a member of the Federal Trade Commission, upholding a law that gave the five commissioners broad job protections.

That precedent is now in jeopardy—and with it the independence of agencies like the SEC, FTC, and FCC, whose members are presidential appointees but are not currently subject to White House control.

In 2020, the court ruled that the president could fire the director of the Consumer Financial Protection Bureau for any reason, striking down a similar shield that Congress had created for the position. The court said the separation of powers in the Constitution precluded an arrangement that left such a powerful figure in the executive branch unaccountable to the president.

The 2020 ruling did not address the legality of multi-member independent agencies and stopped short of overturning Humphrey’s Executor. But the conservative majority said enough to cast doubt on both.

“Overturning Humphrey is very much on the table, and I think it’s probably going to happen in the next five to 10 years,” said Leah Litman, a professor who teaches constitutional law at the University of Michigan Law School. “I think it’s five votes to do it now.”

Project 2025, the Heritage Foundation’s blueprint for a second term for Donald Trump, brought together by his allies and administration alumni, said the 1935 ruling “looks ripe for revision — and perhaps sooner rather than later.”

The sticking point could be the Fed, whose independence has long been a central feature of US economic policy. Trump has already raised questions about the Fed’s autonomy, saying last month that the president should have a say in interest rates and monetary policy.

“The Federal Reserve is the agency that the court might be most careful to fully subject to presidential control,” said Jeffrey Wall, a lawyer at Sullivan & Cromwell who served as acting attorney general under Trump. “Some of the judges might see the Fed as different from almost every other agency.”

As with the nondelegation doctrine, the court will have an early opportunity to address the issue of independent agencies. The court is scheduled to rule in the coming weeks on whether to hear a challenge to the Consumer Product Safety Commission’s autonomy.

The case “questions whether federal agencies can exercise the president’s power without enduring presidential oversight,” according to a filing by two research organizations represented by former Trump White House adviser Don McGahn. “It’s hard to imagine many more important questions than the one presented here.”

Photo: Justices of the US Supreme Court. Photographer: Eric Lee/Bloomberg

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