On Friday, the Supreme Court issued a 6-3 decision in FCC v. Consumers’ Research, rejecting a nondelegation doctrine challenge to the constitutionality of the FCC’s Universal Service Fund. Writing for the Court, Justice Kagan nicely summarizes the issues and the Court’s conclusion:

The question in this case is whether the universal-service scheme—more particularly, its contribution mechanism—violates the Constitution’s nondelegation doctrine, either because Congress has given away its power to the FCC or because the FCC has given away its power to a private company. We hold that no impermissible transfer of authority has occurred. Under our nondelegation precedents, Congress sufficiently guided and constrained the discretion that it lodged with the FCC to implement the universal-service contribution scheme. And the FCC, in its turn, has retained all decision-making authority within that sphere, relying on the Administrative Company only for non-binding advice. Nothing in those arrangements, either separately or together, violates the Constitution.

There are a number of important takeaways from this case, discussed below. Perhaps the biggest takeaway, discussed at the end, is that the Supreme Court’s interest in reinvigorating the nondelegation doctrine seems to be losing steam. That may be because no one has identified an administrable standard to replace the “intelligible principle” test. But the more likely explanation is that the Court has made other reforms to administrative law that address the majority’s concerns about excessive congressional delegation: the elimination of Chevron deference and the rise of the new major questions doctrine.

The Intelligible Principle Test Survives

Consumers’ Research came to the Court from the Fifth Circuit, which had struck down the Universal Service Fund based on violating a combination of the nondelegation doctrine and the so-called private nondelegation doctrine; the problem, in the Fifth Circuit’s view, was the “double-layered delegation” that found “no foothold in history or tradition.” In the briefing before the Supreme Court, however, the challengers separated out these two challenges as distinct and independent grounds for invalidating the Universal Service Fund. They called on the Court to abandon its longstanding “intelligible principle” test for the nondelegation doctrine—a test under which the Court has not struck down a statutory delegation in some 90 years—and reinvigorate the nondelegation doctrine to further limit Congress’s constitutional power to delegate lawmaking discretion.

In her opinion for the Court, Justice Kagan offers a helpful primer on the nondelegation doctrine and the Court’s “intelligible principle” test (citations omitted):

Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” Accompanying that assignment of power to Congress is a bar on its further delegation: Legislative power, we have held, belongs to the legislative branch, and to no other. At the same time, we have recognized that Congress may “seek[] assistance” from its coordinate branches to secure the “effect intended by its acts of legislation.” And in particular, Congress may “vest[] discretion” in executive agencies to implement and apply the laws it has enacted—for example, by deciding on “the details of [their] execution.” To distinguish between the permissible and the impermissible in this sphere, we have long asked whether Congress has set out an “intelligible principle” to guide what it has given the agency to do.

The Court rejects the call to revisit the intelligible principle test, even in the unique context of revenue-raising or taxing legislation. Among other things, the Court notes that “[t]he alternative test Consumers’ Research and the dissent propose … would throw a host of federal statutes into doubt. Relying on this Court’s nondelegation precedents, Congress has often enacted statutes empowering agencies to raise revenue without specifying a numeric cap or tax rate.”

Applying the intelligible principle test and the Court’s precedents, the Court easily concludes that the statutory delegation at issue is constitutional, finding that Congress “imposed ascertainable and meaningful guideposts for the FCC to follow when carrying out its delegated function of collecting and spending contributions from carriers.” In particular, Congress provided guidance on “how much money can the FCC raise through contributions” and “on what things can it spend those funds.”

Guardrails for the Intelligible Principle Test?

In articulating the intelligible principle test, the Court recognizes at least four limits on statutory delegations (citations omitted):

1. Proportionality: “Under th[e intelligible principle] test, ‘the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.’ The ‘guidance’ needed is greater, we have explained, when an agency action will ‘affect the entire national economy’ than when it addresses a narrow, technical issue (e.g., the definition of ‘country [grain] elevators’).”
2. Ends and Boundaries: “[I]n examining a statute for the requisite intelligible principle, we have generally assessed whether Congress has made clear both ‘the general policy’ that the agency must pursue and ‘the boundaries of [its] delegated authority.’”
3. Ascertainability: “And similarly, we have asked if Congress has provided sufficient standards to enable both ‘the courts and the public [to] ascertain whether the agency’ has followed the law.”
4. Context: “Of course, our cases did not examine those statutory phrases in isolation but instead looked to the broader statutory contexts, which informed their interpretation and supplied the content necessary to satisfy the intelligible-principle test.”

To be sure, all four of these guardrails are found in the Court’s prior precedents, and as Justice Kagan observes, the Court has “almost always” found that Congress delegated within these limits. But the three main opinions in Consumers’ Research all emphasize two of these principles—proportionality and context—in ways that may lead to further development in the lower courts.

With respect to proportionality, Justice Kavanaugh in his concurring opinion underscores that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Or as Justice Gorsuch puts it in his dissent, joined by Justices Thomas and Alito, “To survive the intelligible principle test, a delegation involving such a significant power must supply more significant limits on an agency’s discretion than when Congress confers some lesser authority.” He elaborates (citations omitted):

On top of all that, the Court and I agree that the intelligible principle test is not one size fits all. Instead, “contex[t]” matters. Among other things, that means that the “degree of agency discretion that is acceptable” depends on “the scope of the power congressionally conferred.” So, for instance, Congress might permissibly give an agency wide leeway in designing a tax stamp. But Congress must give far more detailed instructions if it wants an agency to regulate an entire industry.

(This focus on proportionality echoes much of the vision set forth in the U.S. Chamber of Commerce’s amicus brief in this case.)

All three opinions also agree that “context matters.” This is not just about proportionality, but also about looking at the whole statute, its structure, and its design to impose additional constraints on a statutory delegation. In addition to contextual tools, I expect courts to continue to use “nondelegation canons,” including the major questions doctrine, to construe statutory delegations more narrowly than the broadest reading of the statute would delegate.

Is the Private Nondelegation Doctrine a Thing?

The Court pays little attention to the so-called private nondelegation doctrine. In Part III of her opinion for the Court, Justice Kagan made quick work of rejecting this challenge, concluding that “[i]n every way that matters to the constitutional inquiry, the Commission, not the Administrator, is in control.” And Justice Jackson penned a short concurrence “to express [her] skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place. Nothing in the text of the Constitution appears to support a per se rule barring private delegations.”

Justice Jackson is correct that the Court has never formally recognized a private nondelegation doctrine, and it will be interesting to see whether it ever will. This case did not present the best vehicle to recognize the doctrine, as the FCC had sweeping control of the private entity’s decisionmaking. But it will be interesting to see what the Court does with the cert petition in Walmsley v. FTC, a private nondelegation doctrine challenge to the statutorily created Horseracing Integrity and Safety Authority (HISA). This strikes me as a stronger vehicle than Consumers’ Research to encourage the Court to recognize a private nondelegation doctrine, and whether the Court grants cert could shed some light on whether the Court has any interest in exploring that.

[6/30/2025 Update: This morning the Supreme Court sent the HISA private nondelegation doctrine cases back to the lower courts (GVR’d) for reconsideration in light of its opinion in Consumers’ Research. So, unsurprisingly, it does not appear the Court is interested in taking up the question right now.]

Loss of Appetite to Revisit the Nondelegation Doctrine?

In Gundy v. United States—the last case the Court heard on the nondelegation doctrine before Consumers’ Research—Justice Gorsuch’s dissent that called for a reinvigoration of the nondelegation doctrine garnered three votes, including Chief Justice Roberts and Justice Thomas. Justice Alito concurred in the judgment because he didn’t think Gundy presented a good vehicle to revisit the doctrine. But he expressed interest in revisiting the doctrine in the appropriate case. Justice Kavanaugh did not participate in the case (as he was not on the Court when oral argument took place), but he later expressed interest in revisiting the doctrine. Justice Barrett had not yet joined the Court. In other words, one could count to five—and maybe anticipate six, with Justice Barrett—to ditch the intelligible principle test and embrace a more-exacting nondelegation doctrine.

Things seem to have changed. While Justices Thomas and Alito join Justice Gorsuch’s continued call to revisit the doctrine, the Chief Justice and Justices Kavanaugh and Barrett do not; indeed, all three join the majority. In his concurrence, Justice Kavanaugh suggests at least two potential reasons why this project seems to be losing steam.

First, Justice Kavanaugh suggests that “[t]he intelligible principle test has had staying power—perhaps because of the difficulty of agreeing on a workable and constitutionally principled alternative….” Despite the Justices’ calls for litigants, lower courts, and scholars to articulate an administrable nondelegation doctrine that is more searching than the intelligible principle test, none appears to have emerged. It may never happen. After all, this would have been a great vehicle to articulate a new doctrine, in a case where the Court could apply the doctrine to uphold the statutory delegation. To be sure, Justice Gorsuch has not given up. “When it comes to other aspects of the separation of powers,” he observes, “we have found manageable ways to honor the Constitution’s design. This one requires no less of us.” But he seems to have lost votes and momentum.

Second, Justice Kavanaugh suggests that other developments at the Supreme Court have “substantially mitigated” “many of the broader structural concerns about expansive delegations”: “(i) the Court’s rejection of so-called Chevron deference [in Loper Bright] and (ii) the Court’s application of the major questions canon of statutory interpretation.” He elaborates (citations omitted):

Although the nondelegation doctrine’s intelligible principle test has historically not packed much punch in constricting Congress’s authority to delegate, the President generally must act within the confines set by Congress when he implements legislation. So the President’s actions when implementing legislation are constrained—namely, by the scope of Congress’s authorization and by any restrictions set forth in that statutory text.

On top of that, when interpreting a statute and determining the limits of the statutory text, courts presume that Congress, in the domestic sphere, has not delegated authority to the President to issue major rules—that is, rules of great political and economic significance—unless Congress clearly says as much. Courts “presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.” That major questions canon reflects both background separation of powers understandings and the commonsense interpretive maxim that Congress does not usually “hide elephants in mouseholes” when granting authority to the President.

Justice Gorsuch echoes this second explanation, observing that “the Court has sometimes mitigated its failure to police legislative delegations by deploying other tools, like the major questions doctrine and de novo review of statutory terms, to ensure the Executive ‘act[s] within the confines set by Congress.’”

I hesitate to make predictions about how the Supreme Court will act in a given case, much less how it will shape doctrines going forward. But I wouldn’t be surprised if the Court does not try to replace the intelligible principle test anytime soon. If it does revisit the nondelegation doctrine, it is more likely to strengthen the intelligible principle test by patrolling the proportionality requirement. My best guess, however, is that Loper Bright de novo review and the major questions doctrine likely address almost all of the current majority’s concerns about broad statutory delegations. Reinvigorating the nondelegation doctrine may not be worth the effort to address any remaining concerns.