Ok, sure.

The Constitution grants legislative powers to Congress, article 1. Congress has the authority to delegate some of their powers to other branches of government (executive article 2 or judiciary article 3).

So when Congress writes a law establishing an agency, they can give that agency rulemaking authority (regulations and article 1 powers), adjudicatory authority (a judicial power and article 3 powers), and/or enforcement powers (article 2 executive powers). So Congress can grant to an agency the powers of all three branches of government. The genesis for this power of Congress to create agencies stems from the APA (Admin Procedure Act). So why can Congress do this? Isn't this a separation of powers issue? The Necessary and Proper clause of the Constitution grants government the authority to make rules or establish agencies to carry out valid exercises of Constitutional power. If Congress does have the ability to pass a law outlawing some type of behavior, then it's necessary and proper for them to have an enforcement mechanism. Now, you might say that the President is entrusted with faithfully executing the laws. That is true. But when the executive branch lacks the requisite knowledge or skills to regulate a particular area (for example, environmental regulations), Congress can validly create an agency to do just that.

One of the ways plaintiffs can go about challenging subsequent rules or adjudications by an agency is to argue that the agency exceeded their statutory authority. So for example, Congress passed a statute creating the EPA. This is the EPA's "organic statute". Can the EPA then go and make rules that regulate smartphone usage? No. Why? Because it's beyond their mandate. Agencies can create rules, but they cannot legislate.

Why can't the EPA do this? Because the organic statute creating the EPA must have what is called an "intelligible principle". I won't go too deep into this next part because it would just take way too long, but if you want a more clear picture, look up Whitman v. American Trucking. Suffice to say, that the Court held that each organic statute must contain a short description of what the agency is tasked to do, and the powers it can exercise.

But the intelligible principle idea is so very broad. That's why I say it's a joke in law school, because even the most vague statement is enough to pass Constitutional muster. So if the EPA organic statute said "The EPA shall have the authority to rulemake, adjudicate, and enforce regulations that arise under this statute, in order to effect the task of improving environmental qualities of the US" it would likely be enough. You may think wow, so if the EPA decided that production and mining of silicon in the aggregate contributed even slightly to worse air quality, they can regulate them out of existence. And to an extent, you are correct. However, Scalia made a very important ruling that limited this exercise of power.

"Congress does not hide elephants in mouseholes". Cost was a big issue in Whitman. If Congress did not give direction as to whether to consider something like compliance cost or industry effect, does the agency have the implicit authority to regulate to such an extent? The answer is no. That's because if Congress did intend for the agency to wield such power they would have expressly stated so. If our organic statute just says to help improve environmental quality but not to consider industry cost, then that term is implicated by law. So that's a good thing.

Analysis of non-delegation issues:

1. What is the scope of the delegation?

That's why we just discussed cost. If cost is not a threshold issue, because if it isn't, then under a case called Chevron, courts have to defer to an agency's reasonable interpretation of their organic statute. (Much more to it than that, but Chevron would require a very different post, again I can go over later if there is interest). In short, ambiguous language in an organic statute can be interpreted (note, not "cured") by an agency, and that would remain rulemaking (constitutional) and not legislating (unconstitutional).

2. This is also a question about whether Congress delegated rulemaking or legislative powers which I got to a bit premature in my analysis under 1. If cost is NOT ambiguous, then the Court wouldn't have to defer to an agency's reasonable interpretation. The test for whether something is rulemaking or legislative is the heart of the intelligible principle standard. But like mentioned previously, it's a low bar. All that is needed is general guidance, not determinate criteria. Some sliding scale is noted, in that the larger the scope, the more criteria are needed, but still, it's a ridiculously low bar. And THAT is the subject of this new ruling.

The idea, at least historically to the Court, is that nondelegation is fine as is because if Congress gives too much power to an agency, it gets struck down (but again, I find this a weak argument because of it only happening twice). The next rationale is that agencies will tend to interpret a broad intelligible principle in a narrow way as to avoid being sued. I think this is weak too because as we can see, agencies exceed their scope all the time (in my opinion) and it's hard to sue them for many people because of standing issues.

There is more I could talk about, but in the interest of not writing a book here, I'll end it with that. Basically, this ruling goes after the intelligilbe principle test, which is the lynchpin that holds together basically all the modern jurisprudence of administrative law. If the Court gives non-delegation teeth, boy, this might fundamentally change the way agencies rulemake and adjudicate in this country. Its implications are massive and I cannot wait to see how it pans out.

I second that motion.

See my reply above

See reply above