FedSoc Forums Nondelegation and the Limits of Agency Authority after Consumers' Research and Loper Bright
Jan 29, 2026
01:02:55
The panel will discuss the questions left open—or raised—by the Supreme Court’s decisions in FCC v. Consumers' Research and Loper Bright Enterprises v. Raimondo, about the proper approach to statutory construction and the role that the nondelegation doctrine should play as a background principle in statutory analysis in cases where an agency has claimed broad authority to weigh competing public values when promulgating legislative rules. The discussion might address such subtopics as:
Whether the Supreme Court’s rejection of an “extravagant” interpretation of FCC’s statutory authority in Consumers’ Research tells us anything about how courts should approach statutory cases where an agency is asserting an expansive view of its statutory authorities—given that the Court appeared to say that the dissent’s (supposedly “extravagant”) interpretation would present a nondelegation problem.
What role nondelegation concerns should play under the avoidance canon in cases where an agency seeks to stretch nebulous or expressly open-ended delegations to achieve whatever policy objective the Executive Branch deems fit from one administration to the next.
Whether these kinds of concerns can be dealt with by expanding clear statement rules—like that the Court has begun to develop with the major questions doctrine.
Whether and to what extent legitimate nondelegation concerns arise in cases where Congress has expressly said that an issue is vested to agency discretion—as was contemplated in Loper Bright for certain kinds of rules for which the Court said the agency gets to decide.
Featuring:
Prof. Jonathan Adler, Tazewell Taylor Professor of Law and William H. Cabell Research Professor, William & Mary Law School; Senior Fellow, Property and Environment Research Center
Prof. Ilan Wurman, Julius E. Davis Professor of Law, University of Minnesota Law School
(Moderator) Adam White, Senior Fellow, American Enterprise Institute; Director, Scalia Law's C. Boyden Gray Center for the Study of the Administrative State
Whether the Supreme Court’s rejection of an “extravagant” interpretation of FCC’s statutory authority in Consumers’ Research tells us anything about how courts should approach statutory cases where an agency is asserting an expansive view of its statutory authorities—given that the Court appeared to say that the dissent’s (supposedly “extravagant”) interpretation would present a nondelegation problem.
What role nondelegation concerns should play under the avoidance canon in cases where an agency seeks to stretch nebulous or expressly open-ended delegations to achieve whatever policy objective the Executive Branch deems fit from one administration to the next.
Whether these kinds of concerns can be dealt with by expanding clear statement rules—like that the Court has begun to develop with the major questions doctrine.
Whether and to what extent legitimate nondelegation concerns arise in cases where Congress has expressly said that an issue is vested to agency discretion—as was contemplated in Loper Bright for certain kinds of rules for which the Court said the agency gets to decide.
Featuring:
Prof. Jonathan Adler, Tazewell Taylor Professor of Law and William H. Cabell Research Professor, William & Mary Law School; Senior Fellow, Property and Environment Research Center
Prof. Ilan Wurman, Julius E. Davis Professor of Law, University of Minnesota Law School
(Moderator) Adam White, Senior Fellow, American Enterprise Institute; Director, Scalia Law's C. Boyden Gray Center for the Study of the Administrative State