While FDA Suffers Staffing Cuts, Nondelegation Case in SCOTUS Is Latest Legal Challenge to Curb Agency Powers

Last June, the United States Supreme Court issued four landmark decisions that curbed executive agency powers. Those decisions are changing the way agencies, including FDA, exercise their rulemaking and enforcement authorities. Regardless of your position on the correctness of the holdings or the reasoning behind them, Loper Bright, Jarkesy, EPA v. Ohio, and Corner Post have fundamentally altered the scope of agency authority. Last week, the U.S. Supreme Court heard oral arguments in a combined case that may add a fifth decision to the starting lineup of how we discuss agency limits—or, at least, litigation about agency limits—going forward.

FCC v. Consumers’ Research, consolidated with SHLB Coalition v. Consumers’ Research is a challenge concerning a constitutional legal principle called the nondelegation doctrine. According to its advocates, Congress cannot constitutionally delegate its authority to executive branch agencies without clear guidelines and limits. It’s born of Article I, Section 1, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” “All” means all, according to the doctrine’s advocates, and courts should view delegations with extreme prejudice, especially those dealing with the collection of money. Absent an “intelligible principle to which the person or body authorized to” act, the judiciary should forbid delegation. The precedent requiring an intelligible principle for delegation is almost a century old and little used, but legal groups are trying to revive it.

Here, Congress has charged the FCC with collecting fees from voice service providers to fund a nonprofit corporation that, in turn, subsidizes phone and internet services in underserved rural areas. The respondents challenged that law in several federal suits around the county, claiming it’s akin to an unconstitutional tax. The case comes to the Supreme Court after Consumers Research lost before panels in the Fifth, Sixth, and Eleventh Circuits. A win before an en banc rehearing in the Fifth Circuit provided the split needed to move their case to SCOTUS.

We note that in Loper Bright, SCOTUS overturned the Chevron doctrine in part because it ruled that the National Marine Fisheries Service lacked the Constitutional authority to impose financial burdens on fishing vessels. In Jarkesy, SCOTUS ruled that the SEC lacked the Constitutional authority to impose civil penalties on defendants absent a jury trial. Both arose from executive agencies collecting money. That common thread makes for a stronger challenge because taxation and revenue are not traditionally executive branch functions. To that point, last week’s oral argument focused largely on the manner in which FCC raised funds for the nonprofit at the center of the case, and how those funds were managed.

If SCOTUS brings back the nondelegation doctrine, perhaps the Court will limit its ruling to how agencies collect funds. That potentially implicates FDA’s user fee programs. As of now, though, it’s too soon to know if the Court would stop there, or if broader challenges are afoot. Either way, a revival of the nondelegation doctrine potentially introduces a number of constitutional issues for FDA, adding yet another limiting layer on agency authority. Loper Bright throttled how agencies like FDA can interpret their regulatory power; Consumers’ Research potentially allows future litigants to question whether they should even have the power in question in the first place.

Like FCC, FDA relies on broad statutory authority from Congress under a unique statute. The scientific and policy issues within FDA’s jurisdiction have long been thought of as so complex that delegations to FDA and other federal agencies were necessary to protect public safety. But combined with end of agency deference, the resurrection of the nondelegation doctrine may add another aspect to the shift in oversight we are navigating as a country.

We’ll have another post in June, after the decision is handed down.