Lawyer here.

Admin law is pretty screwed up.

If the petitioner (WV) is arguing that the regulatory authority issued by Congress to the agency (EPA) violates the non-delegation doctrine, I don't like our chances IF the Court keeps to stare decisis (precedent). Currently, and historically, the non-delegation clause has only twice in the Court's history struck down laws on the basis of non-delegation.

Non delegation essentially says that article 1 of the constitution grants to Congress authority to pass laws. Congress can delegate some of this legislative authority to other branches. In the case of executive agencies (like the EPA) this means that Congress is delegating power to the executive branch (article 2). In the past, these types of delegations have nearly all been Constitutional as long as the Congressional statute has what is called an "intelligible principal" which essentially means that Congress has to say what the agency can do. Even something as broad as "The EPA shall have authority to make rules and adjudicate for all issues that relate to ensuring sufficient environmental quality in the US". So an subsequent EPA regulation that sets limits on carbon emissions from coal plants would fall within this intelligible principal.

But, lately the Court has been overruling prior precedents and upturning stare decisis, so that may be a good sign.

Keep your fingers crossed. Because if non-delegation is reworked, this calls into question all future Congressional laws that attempt to delegate legislative power to unelected bureaucrats. And possibly even past delegations.

We'll see.

Lawyer here.

Admin law is pretty screwed up.

If the petitioner (WV) is arguing that the regulatory authority issued by Congress to the agency (EPA) violates the non-delegation doctrine, I don't like our chances IF the Court keeps to stare decisis (precedent). Currently, and historically, the non-delegation clause has only twice in the Court's history struck down laws on the basis of non-delegation.

Non delegation essentially says that article 1 of the constitution grants to Congress authority to pass laws. Congress can delegate some of this legislative authority to other branches. In the case of executive agencies (like the EPA) this means that Congress is delegating power to the executive branch (article 3). In the past, these types of delegations have nearly all been Constitutional as long as the Congressional statute has what is called an "intelligible principal" which essentially means that Congress has to say what the agency can do. Even something as broad as "The EPA shall have authority to make rules and adjudicate for all issues that relate to ensuring sufficient environmental quality in the US". So an subsequent EPA regulation that sets limits on carbon emissions from coal plants would fall within this intelligible principal.

But, lately the Court has been overruling prior precedents and upturning stare decisis, so that may be a good sign.

Keep your fingers crossed. Because if non-delegation is reworked, this calls into question all future Congressional laws that attempt to delegate legislative power to unelected bureaucrats. And possibly even past delegations.

We'll see.