West Virginia v. EPA: Whither the New Deal Order?

Since the late 1930s, national administrative agencies have built policy by interpreting broad and sometimes vague congressional statutes to develop rules that fulfill Congress’s vision. This model facilitated administrative development, resulting in the organization and operation of the modern American state. Recently, however, the Court has constructed a path to transform this understanding by reviving a long-abandoned principle, that of nondelegation. Reanimating nondelegation would require Congress to legislate in narrower and more specific ways, limit the reach and autonomy of administrative agencies, and leave far more governing authority in the hands of states and localities. Simultaneously, the Court is exercising more scrutiny over Congress’s exercise of its authority, especially when its actions curtail state sovereignty.While this most recent case,West Virginia v. Environmental Protection Agency (EPA), does not achieve these broad changes, the interplay between Chief Justice Roberts and other conservatives invites further attempts to constitutionally transform and shrink the national administrative state. The nondelegation doctrine controversially holds that “legislative delegation of rule-making power to the executive branch is unconstitutional, and that the federal courts should strike down legislation that delegates.” Most scholars locate the doctrine’s high-water mark at the national level during the NewDeal in the 1930s, with the Supreme Court using it to invalidate the National Industrial Recovery Act.