Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “DOL Autonomy at Risk If Justices Weigh Delegation, Attys Say,” by Max Kutner. (Read the full version – subscription required.)

Following is an excerpt:

U.S. Supreme Court whose majority appears interested in limiting the administrative state could soon address the nondelegation doctrine, a possibility attorneys said could impact cases challenging U.S. Department of Labor rules.

In West Virginia v. EPA in late June, the Supreme Court restricted the EPA's ability to regulate power plants' greenhouse gas emissions. The court majority held that under the "major questions doctrine," the government must show clear authorization from Congress to regulate, a ruling attorneys have said could restrict DOL rulemaking.

Justices in the EPA case and earlier cases have signaled an interest in addressing the nondelegation doctrine, which, like the major questions doctrine, deals with the authority of federal agencies. The nondelegation doctrine is the principle that Congress cannot delegate its legislative powers to other entities. …

Here, Law360 looks at the nondelegation doctrine and how it might threaten DOL rulemaking.

Nondelegation Gaining More Attention

Unlike the major questions doctrine, which the Supreme Court had not addressed before the EPA case, the high court has previously weighed in on the nondelegation issue, as early as the 1930s.

The doctrine came up again in 1989 in Mistretta v. United States, a case involving sentencing guidelines, and in 2001 in Whitman v. American Trucking Associations Inc., another case dealing with the EPA.

In the latter case, the justices held that the nondelegation doctrine enables Congress to give agencies discretion to set regulations, though agencies may not make environmental regulations based on financial effects. …

Then, in 2019, a high court majority held in Gundy v. United States that a federal sex offender registry law did not violate the nondelegation doctrine. But Justice Samuel Alito wrote in a concurrence that the court should revisit its approach to the doctrine, and Justice Neil Gorsuch wrote in a dissenting opinion that the court should change its approach to the doctrine.

In the recent EPA case, Justice Gorsuch cited Gundy, writing in a concurrence that there was disagreement within the high court about concern for "the Constitution's assignment of the legislative power to Congress." Justice Alito joined in that concurrence. …

The Gorsuch concurrence signals that nondelegation "is on the court's mind," said Paul DeCamp of management-side firm Epstein Becker Green. "That opens the door for a reinvigoration of the nondelegation doctrine."

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