U.S. Supreme Court Appears Ready to Tackle a Major Separation of Powers Issue

This white paper discusses FCC v. Consumers’ Research, a case now set for consideration by the U.S. Supreme Court, along with a review and analysis of the major impact it may have on how and when Congress may permissibly delegate regulatory authority to federal agencies and the implications for those agencies in the administration and operation of the federal government.

On Nov. 22, 2024, the U.S. Supreme Court granted certiorari in a case that is expected to address one of the most hotly contested and politically charged issues in the current regulatory environment. The case, Federal Communications Commission v. Consumers’ Research, (FCC/Consumers’ Research) concerns, among other things, the extent to which Congress may constitutionally delegate authority to federal executive agencies to administer statutes.[1]

In case after case of late, litigants seeking to limit the powers of those agencies have asserted that the statutory authority under which they are operating was impermissibly delegated to them in violation of Article I, Section 1 of the Constitution. That Section provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States….” This in turn has opened the door to disputes as to whether, when and how Congress, in enacting a statute, may delegate authority to an executive agency to promulgate rules and regulations to carry out the statute’s purposes without abdicating its legislative power.

This article is divided into five sections. Section I discusses the constitutionality of congressional delegations generally. Section II reviews the FCC/Consumers’ Research case and other recent cases involving delegation challenges. Section III outlines the questions to be presented to the Supreme Court in FCC/Consumers’ Research. Section IV considers the potential impact of the case on Congress, the agencies and the courts. Section V discusses the major questions doctrine, the repeal of the Chevron doctrine and the ongoing challenges to the Federal Trade Commission’s (FTC) noncompete ban as they relate indirectly to the delegation question.

In the addendum to the article, we discuss the pending cases challenging the validity of the Federal Trade Commission’s (FTC or Commission) rule (Rule) banning most noncompete agreements, and uses those cases as a jumping off point for purposes of providing a review of the critical issues as they are being litigated in those cases and in other cases challenging the validity of other rules and regulations promulgated by other agencies across the entire executive agency landscape.

Read more in the white paper and its addendum.

[1] The case is being heard along with a companion case, SHLB Coalition et. al. v. Consumers’ Research, et. al.