Last year, the US Supreme Court overruled the 40-year old Chevron deference doctrine, opening up new opportunities to challenge agency action. This term, the Supreme Court is considering an equally weighty question: When does Congress grant an agency so much open-ended power that it violates the non-delegation doctrine?
The Supreme Court heard arguments on that question yesterday in FCC v. Consumers’ Research, and the outcome could have a significant effect on federal programs and litigation against federal agencies.
Here are five takeaways from the argument, and what it could mean for litigants:
1. The non-delegation doctrine is back
Until recently, the non-delegation doctrine was basically a dead letter. The Supreme Court hasn’t invalidated a federal statute on non-delegation grounds since 1935. But in 2019, Justice Neil Gorsuch, Justice Clarence Thomas, Justice Samuel Alito, and Chief Justice John Roberts expressed a willingness to revitalize the doctrine in Gundy v. United States.
The Supreme Court’s decision to grant certiorari in the FCC case, and the justices’ extensive questioning at argument, demonstrate that the court is taking the non-delegation doctrine seriously. Even if the Supreme Court issues a narrow opinion in this case, the court’s renewed interest could empower lower courts to take a hard look at other non-delegation challenges—and potentially strike down other open-ended statutes as unconstitutional.
2. The Supreme Court appears poised to adopt a stronger standard for non-delegation
The current non-delegation standard is watered down; it asks only whether Congress provided an “intelligible principle” to guide the agency’s exercise of discretion. Several justices now appear interested in adopting a more robust standard.
In his Gundy dissent, Gorsuch proposed a three-part test: (1) If “Congress makes the policy decisions,” it “may authorize another branch to ‘fill up the details’”; (2) if “Congress prescribes the rule governing private conduct, it may make the application of that rule depend on executive fact-finding”; and (3) “Congress may assign the executive and judicial branches certain non-legislative responsibilities.”
At argument, acting Solicitor General Sarah Harris proposed a different standard, which would examine whether there is “sufficiently defined and precise language in the statute to ascertain whether Congress’s rules are followed.”
The court seems likely to adopt Gorsuch’s or Harris’ standard, or perhaps some combination of the two, although it could also simply reaffirm the intelligible principle approach.
3. Federal programs that rely on open-ended language could be in jeopardy
The justices discussed how a decision in this case might affect a host of other government programs, including the federal courts’ ability to set fees, the Postal Service’s ability to determine postage rates, the Federal Reserve Board’s ability to levy assessments on banks, and the Animal and Plant Health Inspection Service’s ability to prescribe fees to cover the costs of agricultural inspections.
That could just be the tip of the iceberg. A decision striking down the Federal Communications Commission’s program could open the door to a host of challenges to other programs that hinge on statutory language such as “just and reasonable,” “sufficient,” “necessary,” or “appropriate.”
4. The Supreme Court could leave hard questions for another day
If the Supreme Court doesn’t have five votes to endorse a particular non-delegation test, it may well sidestep the issue and write a narrow opinion tied to the facts of this case. That would leave parties and lower courts trying to litigate these issues in the wind, at least until the court takes up the non-delegation doctrine again.
One thing to watch for is whether the court categorizes the FCC’s program as a “tax” or a “fee.” The justices spent significant time trying to tease out which bucket this program fits into, and whether it matters. Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Ketanji Brown Jackson signaled a willingness to uphold the program regardless of the label—in part because of slippery-slope concerns. Other justices expressed concern about how to consistently distinguish between taxes and fees. It seems likely the court will not stake out a position on that now, but will reserve the question for a future case.
5. The Supreme Court’s decision could create new opportunities for litigation
The Supreme Court is likely to issue a decision on the non-delegation doctrine by the end of June. In the meantime, litigants should preserve non-delegation arguments under both the intelligible principle test and the Gundy dissent’s test.
Litigants should also begin thinking now about whether there are other agency programs worth challenging, should the court revive the doctrine—and whether there are programs at risk that are worth intervening to defend.
The case is FCC v. Consumers’ Research, US, No. 24-354, argued 3/26/25.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Katie Wellington is a partner in the Appellate & Supreme Court practice at Hogan Lovells and a former law clerk to Chief Justice John Roberts and Justice Brett Kavanaugh.
Danielle Desaulniers Stempel is a senior associate in the Appellate & Supreme Court practice at Hogan Lovells and regularly litigates administrative-procedure cases.
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