The Supreme Court Has A Favorite New Weapon To Stop The Administrative State 

( Whether it is the CDC’s countrywide eviction moratorium or a dormant Obama-era regulation on power-plant emissions, the six conservative justices on the Supreme Court have exerted enormous authority over government decision-making by knocking them down.  

The Supreme Court may strike down President Biden’s executive order on student debt relief because Congress did not “speak plainly” enough to approve it, a position supported by the Major Questions Doctrine. This concept hasn’t been around for very long, but it’s the outcome of a concerted effort by the conservative legal movement to hamper the work of federal regulatory agencies.  

In West Virginia v. Environmental Protection Agency, decided by a court majority led by Chief Justice Roberts, the court went even further by striking down an ineffective carbon emission policy from the Obama administration. The Supreme Court’s Chief Justice John Roberts found that the program could not be upheld under a literal interpretation of the Clean Air Act. 

Judge Neil Gorsuch, a staunch advocate of limiting the power of the “administrative state,” a phrase used by conservative legal theorists to characterize federal regulatory agencies, praised the ruling. The critical questions theory gives unelected courts the power to overturn federal rules created by agencies reporting to presidents elected by the people.  

Where the court draws the line between a wide swath of authority by Congress and the seizure of power by a government agency is uncertain. There are six conservative justices and three liberal justices on the Supreme Court, and the “nondelegation doctrine” was developed during a particular ideological phase on the Court. 

It maintains that the legislative part of government cannot transfer its powers to another branch and that Congress has “delegated” its lawmaking powers to federal agencies by providing them with extensive legal authority to carry out their objectives. This is because of the growing party gap in American politics, the removal of competitive districts via gerrymandering, the consolidation of power in congressional leadership offices, and the weakening of rules governing campaign contributions.  

The Supreme Court has been considering reinstating the nondelegation theory, which holds that a delegation of authority by Congress is allowed as long as it has established an “intelligible principle” to govern the other body.