The Federal Executive Power: Inherent Presidential Power; The Constitutional Problems of the Administrative State

United States v. Nixon

418 U.S. 683 (1974) · Westlaw

A grand jury indicted seven of the President’s associates and named Nixon himself an unindicted co-conspirator. The Special Prosecutor subpoenaed tape recordings of Oval Office conversations. The President moved to quash, claiming an absolute executive privilege, and argued in addition that the dispute was intra-branch and therefore nonjusticiable. The Court, in an opinion argued and decided within sixteen days, rejected both arguments and ordered the tapes produced. He resigned sixteen days after that.

Take the two holdings separately, because they pull in opposite directions and the case is usually remembered for only one of them.

First, the privilege is real and it is constitutional. This is the half students forget. “Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” 418 U.S. at 711. It is “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” Id. at 708. Before this case, executive privilege was an assertion of practice; after it, it is a doctrine with a constitutional pedigree — announced in the opinion that ordered the President to comply.

Second, it is not absolute, and the President does not get to say how far it reaches. On reviewability the Court goes straight to Marbury: “We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is’ with respect to the claim of privilege presented in this case.” Id. at 705. On scope: “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Id. at 706.

What replaces the absolute claim is a balance, and the balance is decided by a generality/specificity contrast worth memorizing: “A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case.” Id. at 713. Hence: “The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Ibid.

Note the reservation, because it is where the doctrine’s future lives. The Court twice sets aside a different case: “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument…” Id. at 706; and as to those areas “the courts have traditionally shown the utmost deference to Presidential responsibilities.” Id. at 710. The privilege the Court cut down is the generalized one. The privilege it has never squarely confronted is the national-security one, and every serious modern fight is about that reservation rather than about this holding.

Two questions to bring. First, the Court gave the President a constitutional privilege and took away his tapes on the same afternoon. Was the doctrinal victory a real one, or the price of unanimity — the concession that made an order against a sitting President possible? Consider that a unanimous Court mattered enormously in July 1974, and that Rehnquist, the President’s own appointee from the Justice Department, took no part. 418 U.S. at 685. Second, the balancing test resolves a generalized claim against a specific need. Reverse it: a specific, documented claim of diplomatic harm against a generalized prosecutorial interest. Nothing in this opinion tells you who wins, and the Court plainly knew that.

A note on the reporter, which is a habit worth building. No numerical vote is printed. The reporter gives only the line-up sentence at 685 — “BURGER, C. J., delivered the opinion of the Court, in which all Members joined except REHNQUIST, J.” If you have seen this case cited as 8–0, that number was supplied by someone else. Note also that the famous “generalized need for confidentiality” phrasing appears in the syllabus, at 684, not in the opinion. The syllabus is the Reporter of Decisions’ work and is not part of the opinion. Quote 706.

A.L.A. Schechter Poultry Corp. v. United States

295 U.S. 495 (1935) · Westlaw

The National Industrial Recovery Act let the President approve “codes of fair competition” drafted by trade associations, and made violation of an approved code a federal crime. The Schechters, kosher poultry slaughterhouse operators in Brooklyn, were convicted under the Live Poultry Code — of, among other things, letting customers select individual chickens from a coop. The Court struck the code-making authority down unanimously, on two independent grounds, and killed the centerpiece of the first New Deal.

The delegation holding. The Court starts from a proposition it takes as settled: “The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” 295 U.S. at 529. What made this statute different was that the codes were not administrative detail but law: “It involves the coercive exercise of the law-making power. The codes of fair competition which the statute attempts to authorize are codes of laws.” Ibid. And so, at 537–538, the sentence the case is quoted for: “But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.”

Read the summation too, because it names precisely what was missing. “Section 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact… Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them.” Id. at 541. Therefore the President’s discretion “is virtually unfettered,” and “the code-making authority thus conferred is an unconstitutional delegation of legislative power.” Id. at 541–542.

The commerce holding, which is the reason you have already met this case in Module 3. The Schechters bought interstate but sold locally, and the Court held the flow of commerce had ended. “[T]he distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.” Id. at 548. Two years later Jones & Laughlin abandons that framework. The delegation holding was never overruled and the commerce holding was buried almost immediately — which tells you something about which of the two the Court of 1937 actually believed.

Cardozo. He concurred, joined by Stone, 295 U.S. at 551, 555 — and the pairing with his solo dissent in Panama Refining four months earlier is the whole reason both cases are assigned. His line: “If that conception shall prevail, anything that Congress may do within the limits of the commerce clause for the betterment of business may be done by the President upon the recommendation of a trade association by calling it a code. This is delegation running riot.” Id. at 553. He opens by borrowing an image from his own Panama dissent — the delegated power here “is not canalized within banks that keep it from overflowing. It is unconfined and vagrant.” Id. at 551. And he marks the split expressly: of Panama he says, “I thought that ruling went too far.” Ibid.

So the question the pair sets up: what moved Cardozo? He would not invalidate a delegation of a single, definite act in January and did invalidate an open-ended code-making power in May. Locate the difference precisely — is it the breadth of the subject, the absence of any policy to refer to, the fact that private trade associations wrote the rules, or the criminal penalty? Whichever you choose, notice that 1935 is the last year the Court struck anything down on this ground, and ask whether the doctrine died because it was wrong or because nothing since has been this bad.

A reporter note: no numerical vote is printed. The reporter gives the author line at 519 and the disposition at 551 and nothing more.

Panama Refining Co. v. Ryan

293 U.S. 388 (1935) · Westlaw

Section 9(c) of the National Industrial Recovery Act authorized the President to prohibit interstate transportation of petroleum produced in excess of what a State allowed — so-called “hot oil.” It said nothing about when he should do it, or why. The Court struck it down four months before Schechter. These are the only two decisions in the history of the United States to invalidate a statute for excessive delegation, and they were decided in the same Term.

What was missing. “Section 9(c) does not state whether, or in what circumstances or under what conditions, the President is to prohibit the transportation… It establishes no criterion to govern the President’s course. It does not require any finding by the President as a condition of his action. The Congress in § 9(c) thus declares no policy as to the transportation of the excess production.” 293 U.S. at 415. The consequence: “it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment.” Ibid. Note that last clause. A criminal penalty attached to a standardless delegation is doing quiet work in both 1935 cases, and it is worth asking whether the doctrine would look different if it had been framed as a due process problem about notice rather than a structural one about delegation.

The holding, at 430: “the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that § 9(c) goes beyond those limits. As to the transportation of oil production, in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule.”

But read 421, which is why this case is assigned rather than merely cited. The same opinion that strikes the statute down also writes the charter for everything that came after: “The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility.” And immediately after, the qualifier: such provisions “cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.” Ibid. Both halves of the modern doctrine sit on one page. Schechter quotes this passage back four months later, and Whitman is still operating inside it in 2001.

Cardozo dissented — alone, so far as the reporter shows; no joinder line is printed. 293 U.S. at 433. His disagreement is deliberately narrow: “I concede that to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed. I deny that such a standard is lacking in respect of the prohibitions permitted by this section when the act with all its reasonable implications is considered as a whole.” Id. at 434. He finds the standard by reading § 9(c) against the policies declared in § 1 — “not merely his own conception of its policies, undirected by any extrinsic guide, but the policies announced by § 1 in the forefront of the statute as an index to the meaning of everything that follows.” Id. at 435. And: “There has been no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases.” Ibid. His conclusion, at 440: “Discretion is not unconfined and vagrant. It is canalized within banks that keep it from overflowing.”

Two questions. First, Cardozo’s method is to read the statute as a whole and let a general declaration of policy supply the standard for a specific grant. That is exactly what every modern court does, and it is why nondelegation has invalidated nothing since 1935. Was his dissent wrong, or did it win? Second, hold the “canalized” image and watch it travel: he borrows it from himself in Schechter, where he uses it against a delegation. The same metaphor, four months apart, on opposite sides. What changed — the banks, or the water?

A reporter note: no numerical vote is printed. The reporter gives the author line at 405, the disposition at 433, and Cardozo’s dissent heading. If you have seen this cited as 8–1, that number came from somewhere else.

Whitman v. American Trucking Associations, Inc.

531 U.S. 457 (2001) · Westlaw

Section 109(b)(1) of the Clean Air Act directs the EPA to set national ambient air quality standards “requisite to protect the public health” with “an adequate margin of safety.” The D.C. Circuit held that this delegated legislative power — and then, remarkably, remanded so the agency could cure the defect by adopting a narrowing construction of its own. Justice Scalia’s opinion rejects both halves.

The delegation holding, and the test. “In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency,” and Article I “permits no delegation of those powers,” so Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” 531 U.S. at 472, quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). Section 109(b)(1) supplies one.

The agency cannot fix it. “We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute.” Ibid. That sentence is short and worth pausing on. If the vice of an excessive delegation is that Congress failed to make the policy choice, then an agency volunteering to bind itself cannot cure it — the agency would be exercising the very discretion whose existence is the problem. It is the cleanest statement in the modern cases of why nondelegation is a structural doctrine rather than a rule about how much discretion is comfortable.

How weak the test is, in the Court’s own words. “In short, we have ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’” Id. at 474–475. The Gundy plurality quotes exactly this sentence eighteen years later. Note also the one variable the Court says does matter: “It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Id. at 475. Congress need give no guidance on defining “country elevators,” but “must provide substantial guidance on setting air standards that affect the entire national economy.” Ibid. Hold that sentence. It is a nondelegation principle keyed to the magnitude of the question — which is, in substance, what the major questions doctrine will later become, and it is already here in 2001.

The costs holding, which is why this case matters twice. The Court held that § 109(b) “unambiguously bars cost considerations from the NAAQS-setting process.” Id. at 471. The reasoning is a clear-statement move: because § 109(b)(1) is “the engine that drives nearly all of Title I,” any textual commitment of cost authority “must be a clear one. Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.” Id. at 468. West Virginia v. EPA cites that very page. So the same opinion supplies both the toothless nondelegation test and the interpretive tool that later does the work nondelegation could not.

Thomas, concurring, plants the flag the doctrine’s revivalists have carried since: “the Constitution does not speak of ‘intelligible principles.’ Rather, it speaks in much simpler terms: ‘All legislative Powers herein granted shall be vested in a Congress.’” Id. at 487. And: “I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’” Ibid. He would “address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.” Ibid.

Two questions. First, if the acceptable degree of discretion varies with the scope of the power conferred, why is a standard that governs the air quality of the entire country an adequate one? Scalia’s answer is that “requisite” means neither more nor less than necessary — a determinate instruction. Is it? Second, compare Thomas’s objection with Gorsuch’s dissent in Gundy. Thomas accepts the test and says it is incomplete; Gorsuch says it was never the test at all. Which is the more radical claim, and which is more likely to be adopted?

A reporter note: no numerical vote is printed; the reporter gives a Part-by-Part line-up at 459, with Parts I and IV unanimous and Parts II and III separately joined. Stating this case as a single vote number misdescribes it.

Gundy v. United States

588 U.S. 128 (2019) · Westlaw

SORNA required sex offenders to register, and § 20913(d) left it to the Attorney General “to specify the applicability” of those requirements to offenders convicted before the Act — roughly half a million people. Gundy argued that Congress had handed the nation’s chief prosecutor the power to write the criminal law governing them. He lost, but count the votes before you decide what the case holds.

It is a plurality, not a majority, and it was an eight-Justice Court. Justice Kagan “announced the judgment of the Court and delivered an opinion,” joined by Ginsburg, Breyer and Sotomayor. Justice Alito concurred in the judgment. Justice Gorsuch dissented, joined by Roberts, C. J., and Thomas. Justice Kavanaugh took no part. So four Justices applied the existing test, three would overrule it, and one said he would reconsider it if a majority were willing. That is not a four-vote endorsement of the doctrine; it is a four-vote endorsement with a fifth vote openly in play, and the doctrine’s future was left to the next case.

The plurality’s route is statutory. It reads § 20913(d) narrowly — “The Attorney General’s authority goes to transition-period implementation issues, and no further” — and then finds the delegation easy: “That statutory authority, as compared to the delegations we have upheld in the past, is distinctly small-bore. It falls well within constitutional bounds.” Kagan op. Notice the method: construe the grant narrowly, then uphold the narrow grant. That is the same move Roberts makes with the saving construction in NFIB, and the same move the D.C. Circuit was forbidden to let the agency make in Whitman. Ask what distinguishes a court narrowing a statute to save it from an agency doing so. The plurality also states the stakes plainly: “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional — dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

Alito’s concurrence is the whole case in three sentences, and you should read it entire — it is one page. “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” He votes to affirm because he “cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years.” A Justice announcing that he thinks the governing test is wrong and applying it anyway is a rare and instructive thing. Is that judicial restraint, respect for stare decisis, or an invitation?

Gorsuch’s dissent is the most sustained attack on the intelligible-principle test in the Reports. His historical claim is that the phrase never meant what it is now taken to mean: it appeared in J. W. Hampton in 1928, where “[n]o one at the time thought the phrase meant to effect some revolution in this Court’s understanding of the Constitution,” and then “sat more or less silently entombed until the late 1940s. Only then did lawyers begin digging it up in earnest.” The “mutated version,” he says, “has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.”

In its place he offers three categories drawn from the older cases: Congress may authorize another branch to “fill up the details” once it has made the policy decisions; it may make the application of a rule depend on executive fact-finding; and it may assign non-legislative responsibilities where its authority overlaps another branch’s. Running through all of them: Congress must set standards “sufficiently definite and precise to enable Congress, the courts, and the public to ascertain” whether its guidance has been followed.

Three questions. First, test Gorsuch’s framework against the statutes you know — the Clean Air Act’s “requisite to protect the public health,” the FCC’s “public interest, convenience, and necessity,” the Sentencing Commission. Does his test invalidate them, and if it does, is that an objection to the test? He says it would not; make him prove it. Second, the plurality’s answer is essentially that his rule cannot be administered without unsettling the government. Is “most of Government would be unconstitutional” a legal argument? Third — and this is the one to carry forward — the nondelegation revival lost here 4–3–1 and then, three Terms later, achieved much of its object under a different name. Read West Virginia v. EPA next and ask whether the major questions doctrine is nondelegation by other means, and whether that should count as a win.

A note on citation: the case cite is 588 U.S. 128, confirmed against the Court’s own preliminary print. But this note quotes no page, because the text was taken from the slip opinion, which restarts its pagination in each opinion and prints the reporter page as a blank. Quotations here are attributed by opinion — Kagan’s plurality, Alito’s concurrence, Gorsuch’s dissent — and you should pin to the reporter if you cite a passage in written work.

FCC v. Consumers' Research

606 U.S. 656 (2025) · Westlaw

The Telecommunications Act of 1996 requires every carrier providing interstate telecommunications service to “contribute” to the Universal Service Fund. The Fund pays for service to rural and high-cost areas, low-income consumers, schools and libraries, and rural hospitals. Each quarter the FCC sets how much carriers owe, using a “contribution factor.” That factor is built from projections prepared by a private nonprofit, the Universal Service Administrative Company. Consumers’ Research argued that the scheme is unconstitutional twice over. First, Congress gave the FCC a taxing power with no limit. Second, the FCC passed part of that power to a private company. The en banc Fifth Circuit struck the scheme down on a third theory: even if neither delegation was invalid alone, the two together were. The Supreme Court reversed, six to three. This is the Court’s most recent word on nondelegation. It is why Gundy is no longer the end of the story, and it is where the three Gundy dissenters went their separate ways.

The test, restated and reaffirmed. Kagan, for the Court: “To distinguish between the permissible and the impermissible in this sphere, we have long asked whether Congress has set out an ‘intelligible principle’ to guide what it has given the agency to do.” 606 U.S. at 673. The question is whether Congress has made clear both “the general policy” the agency must pursue and “the boundaries of [its] delegated authority.” Ibid. (quoting American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). Then comes the sentence that tells you how the test works in practice: “If Congress has done so — as we have almost always found — then we will not disturb its grant of authority.” Ibid. Chief Justice Roberts, who joined the Gundy dissent in 2019, joined this opinion.

No special rule for taxes. Consumers’ Research argued that a revenue-raising statute needs a numeric cap or a fixed rate. The Court said its precedents foreclose that: “Twice before, we have rejected a party’s request to create a special nondelegation rule for revenue-raising legislation.” Id. at 674 (discussing J. W. Hampton, Jr., & Co. v. United States (1928) and Skinner v. Mid-America Pipeline Co. (1989)). And the statute’s own word did the limiting work: “the word ‘sufficient’ sets a floor and a ceiling alike.” Id. at 681. The FCC must raise enough to fund the programs Congress defined, and no more. The statute also says who benefits and which services qualify. A service must be essential to education, public health or public safety, subscribed to by a substantial majority of residential customers, and available at affordable rates.

The private company and the “combination” theory. The Administrator only recommends. The FCC appoints its board and approves its budget; the Administrator “may not make policy”; and the FCC reviews, and can revise, every projection before the factor takes effect. Id. at 692–93. So the private-delegation claim failed. The Fifth Circuit had borrowed its combination theory from Free Enterprise Fund, the two layers of removal protection you will meet in Module 5A. The Court explained why the analogy fails. The two removal layers limited the same thing, the President’s power to remove. But public and private nondelegation “do not operate on the same axis,” so “a meritless public nondelegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious ‘combination’ claim.” Id. at 696–98.

Gorsuch, dissenting, joined by Thomas and Alito, opens with Madison: within the federal government, Congress “alone has access to the pockets of the people.” Id. at 711 (quoting The Federalist No. 48). “The Constitution affords only our elected representatives the power to decide which taxes the government can collect and at what rates.” Ibid. He would require Congress to set a tax rate, or perhaps a cap. See id. at 674 (describing the dissent).

Kavanaugh, concurring — read this with Module 5A in mind. He joins the Court, but he separates two kinds of delegation. Delegations to the President and executive agencies are one thing, especially in national security and foreign affairs, where the President has some power of his own even without Congress. “Congressional delegations to independent agencies, as distinct from delegations to the President and executive agencies, raise substantial Article II issues.” Id. at 707. He then names the fix: “One is to overrule (or significantly narrow) Humphrey’s Executor so that the heads of all or most independent agencies are removable at will by the President, and thus supervised and directed by the President.” Id. at 709. A year later, Trump v. Slaughter did that. Nondelegation and removal turn out to be the same question asked twice: who answers to the voters for power Congress hands away?

Two questions. First, after this case, is nondelegation still a doctrine that strikes down statutes, or has it survived only as a canon of interpretation — the major questions doctrine in West Virginia and Nebraska? Say which, and use the line-up to prove it. Second, Kavanaugh offered two solutions: make independent agencies answerable to the President, or apply a stricter nondelegation rule to them. Slaughter chose the first. Does that make the second unnecessary? What about the Federal Reserve, which Slaughter expressly left open?

A note on citation: pins are to the preliminary print of 606 U.S., which is subject to formal revision before the bound volume. The opinion is Kagan’s for the Court, joined by Roberts, Sotomayor, Kavanaugh, Barrett and Jackson. Kavanaugh and Jackson each concur. Gorsuch dissents, joined by Thomas and Alito.

Loper Bright Enterprises v. Raimondo

603 U.S. 369 (2024) · Westlaw

For forty years, when a statute an agency administered was ambiguous, courts deferred to the agency’s reasonable reading of it. That was Chevron U.S.A. Inc. v. Natural Resources Defense Council (1984). Loper Bright came from herring fishermen. A federal rule required them to pay for the monitors the government put on their boats, and the statute did not clearly say whether the agency could make them pay. The lower courts deferred to the agency under Chevron. The Supreme Court overruled Chevron, six to two in this case (Justice Jackson was recused here but sat in the companion case). This is a statutory decision, not a constitutional one — it rests on the Administrative Procedure Act — but it is assigned in this module because it answers the question the administrative state keeps raising: when Congress hands an agency a job, who decides what the statute means?

The holding. Roberts, for the Court: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” 603 U.S. at 412. “Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Id. at 412–13.

Why, in the Court’s account. Two reasons, one statutory and one about the judicial role. The APA tells reviewing courts to “decide all relevant questions of law” and to “interpret … statutory provisions.” 5 U.S.C. § 706. Chevron told them to hand that job to the agency whenever the statute was unclear. And the Court grounds the APA’s command in Marbury: “[i]t is emphatically the province and duty of the judicial department to say what the law is.” It reads The Federalist No. 78 the same way: interpreting the laws was understood from the start to be the courts’ job.

What it does not do. The Court was careful about reliance. Past cases that upheld particular agency actions under Chevron are not reopened just because Chevron is gone; their specific holdings keep the protection of statutory stare decisis. And the opinion keeps two things alive. Courts still give weight to an agency’s considered views (Skidmore respect, the older and weaker form of deference). And where Congress expressly gives an agency discretion — to define a term, or to fill in details — courts respect that delegation, within constitutional limits. That last clause is where this case meets the nondelegation cases you just read: the delegation must still pass Whitman and Consumers’ Research.

The dissent. Kagan, joined by Sotomayor (and by Jackson in the companion case): “For 40 years, Chevron … has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies.” Id. at 448 (Kagan, J., dissenting). Her argument is about competence and accountability: when a statute is truly ambiguous, the choice among readings is often a policy choice, and agencies with expertise and a line to an elected President are better placed to make it than judges.

Where this sits in the module. Put four doctrines in a row. Nondelegation asks whether Congress may give the power at all (Whitman, Consumers’ Research). Major questions asks whether Congress clearly gave it (West Virginia, Nebraska, the tariff case). Loper Bright asks who reads the statute when the grant is unclear — and answers: the courts. Jarkesy asks where the agency may use the power once it has it. Each one moves power away from agencies. Ask where it goes: to the courts, to the President, or back to Congress.

Two questions. First, Chevron was sometimes defended as a rule of accountability: an agency answers to the President, and the President answers to voters; judges answer to no one. After Seila Law and Slaughter make agency heads more answerable to the President, is the accountability argument for Chevron stronger or weaker? Second, the Court kept the rule that courts “must respect” an express delegation. If Congress responds by writing broad express delegations into every statute, what doctrine is left to police them?

A note on citation: pins are to the preliminary print of 603 U.S., which is subject to formal revision before the bound volume. The opinion is Roberts’s for the Court, joined by Thomas, Alito, Gorsuch, Kavanaugh and Barrett. Thomas and Gorsuch each concur. Kagan dissents, joined by Sotomayor, and by Jackson only as to the companion case, No. 22–1219 (Relentless, Inc. v. Department of Commerce); Jackson took no part in No. 22–451.

SEC v. Jarkesy

603 U.S. 109 (2024) · Westlaw

Since 2010 the Securities and Exchange Commission has had a choice when it wants civil penalties for securities fraud: sue in federal court, where the defendant gets a jury, or bring the case in-house, before one of its own administrative law judges, with the Commission itself deciding any appeal. It brought George Jarkesy’s case in-house, found that he had misled investors in two hedge funds, and ordered him to pay a $300,000 civil penalty. The Fifth Circuit set the order aside. The Supreme Court affirmed, six to three: when the SEC seeks civil penalties for securities fraud, the Seventh Amendment gives the defendant a jury. The case is assigned for the third of the administrative state’s three functions — the agency as judge — and for the limit this module has not yet met: the Bill of Rights, not only Articles I and II, constrains where an agency may exercise its power.

The question, and the answer. Roberts, for the Court, framed it as “straightforward”: whether the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities fraud. The answer turns on two steps.

• Is it a suit at common law? Yes. Civil penalties designed to punish and deter, rather than to restore the victim, are the kind of remedy only courts of law historically gave. And the SEC’s fraud claims were modeled on common-law fraud, which juries always tried.
• Does the “public rights” exception apply? That exception lets Congress assign some matters — taxes, tariffs, immigration, public lands, government benefits — to agencies without a jury. The Court said no. What matters is the substance of the claim. A fraud claim does not become a public right because the government brings it or because Congress wrote it into a regulatory statute.

The conclusion, in the Court’s words: “A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands.” 603 U.S. at 140.

The case it had to distinguish. Atlas Roofing Co. v. Occupational Safety and Health Review Commission (1977) had let an agency impose civil penalties for workplace-safety violations without a jury. The Court read Atlas Roofing narrowly: those penalties enforced a new statutory safety regime with no common-law analogue, while securities fraud grows directly out of common-law fraud.

Gorsuch, concurring, joined by Thomas, adds that the jury right “does not work alone.” It “operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, or property.” Id. at 141 (Gorsuch, J., concurring).

Sotomayor, dissenting, joined by Kagan and Jackson, argues that the Court has upended decades of practice for hundreds of agency enforcement schemes, and says so directly: “Make no mistake: Today’s decision is a power grab.” Id. at 202 (Sotomayor, J., dissenting).

Where this sits in the module. Go back to the administrative-state board: an agency can execute, legislate and adjudicate. Loper Bright limits the agency as interpreter. Consumers’ Research and the major questions cases police the agency as legislator. Jarkesy limits the agency as judge. And it leaves open the two structural questions the Fifth Circuit also decided and the Supreme Court did not reach: whether Congress’s unguided choice of forum was an unconstitutional delegation, and whether the SEC’s judges were unconstitutionally protected from removal. After Slaughter, ask what is left of the second.

Two questions. First, the SEC’s choice of forum was the whole case. If Congress had required every fraud penalty case to go to federal court, nothing would have happened to Jarkesy except a jury. Is Jarkesy a limit on agencies, or a limit on Congress’s power to give agencies a choice? Second, list three federal programs where agencies impose money penalties in-house today — workplace safety, immigration, customs, tax. Which survive Jarkesy, and what is the test that sorts them?

A note on citation: pins are to the preliminary print of 603 U.S., which is subject to formal revision before the bound volume. The opinion is Roberts’s for the Court, joined by Thomas, Alito, Gorsuch, Kavanaugh and Barrett. Gorsuch concurs, joined by Thomas. Sotomayor dissents, joined by Kagan and Jackson.

West Virginia v. Environmental Protection Agency

597 U.S. 697 (2022) · Westlaw

The EPA’s Clean Power Plan set emissions caps for existing power plants derived not from any technology a plant could install but from “generation shifting” — moving the national electricity mix away from coal, in the Agency’s plan from 38% to 27% by 2030. The authority claimed was § 111(d) of the Clean Air Act, which directs EPA to identify the “best system of emission reduction.” The Court held that this was not within the grant, and in doing so gave the major questions doctrine its name and its clearest statement.

When the doctrine applies. “[O]ur precedent teaches that there are ‘extraordinary cases’ that call for a different approach — cases in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Opinion of the Court. What it demands. “To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.” Ibid.

The pattern the Court says it is policing. EPA “claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority,” located “in the vague language of an ‘ancillary provision[ ]’ of the Act” — citing Whitman at 468, the elephants-in-mouseholes page — “one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.” That last clause is doing real work: congressional failure to legislate becomes evidence that the agency lacks authority. Ask whether that is a sound inference. Congress declines to enact things for many reasons, including that it thinks the executive already has the power.

The holding is narrower than the doctrine. “[T]he only interpretive question before us, and the only one we answer, is more narrow: whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the Agency in § 111(d)… For the reasons given, the answer is no.” And the closing: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Gorsuch, concurring, joined by Alito, supplies the grounding the majority leaves implicit: “The major questions doctrine works in much the same way to protect the Constitution’s separation of powers. In Article I, ‘the People’ vested ‘[a]ll’ federal ‘legislative powers… in Congress.’” He treats it frankly as a clear-statement rule, one of many: “our law is full of clear-statement rules and has been since the founding.” Its function is to guard against “unintentional, oblique, or otherwise unlikely” intrusions — to stop agencies exploiting “some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond” what was conferred.

Kagan, dissenting, joined by Breyer and Sotomayor, attacks on two fronts. On method: “The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” On substance, her point is that breadth is the purpose of the delegation, not evidence against it: “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.” Members of Congress “often don’t know enough — and know they don’t know enough — to regulate sensibly on an issue,” and “often can’t know enough… to keep regulatory schemes working across time.” As to this statute: “In selecting those words, Congress understood — it had to — that the ‘best system’ would change over time. Congress wanted and instructed EPA to keep up.” Her closing charge: “The Court, rather than Congress, will decide how much regulation is too much.”

Three questions. First, the majority insists the doctrine is not a clear-statement rule but a reading of context; Gorsuch calls it a clear-statement rule and defends it as one; Barrett, concurring in Biden v. Nebraska the following Term, argues it is neither but ordinary textualism. Three members of the same majority give three accounts. Which is right, and does the difference change any outcome? Second, note the doctrinal chain this module has built: Panama Refining and Schechter try to police delegation at the front end and fail; Whitman concedes the test is nearly toothless but plants a clear-statement seed at 468; this case harvests it. Is the major questions doctrine nondelegation relocated from the constitutional question to the interpretive one? If so, what is gained — and what is lost, given that a merely interpretive rule can be overridden by a Congress that legislates clearly? Third, take Kagan’s strongest point seriously: if a delegation’s breadth is the reason it exists, a doctrine that treats breadth as suspicious is at war with the drafting practice it reviews. What is the answer?

A note on citation: the case cite is 597 U.S. 697, confirmed against the Court’s own preliminary print. But this note quotes no page, because the text was taken from the slip opinion, which restarts its pagination in each opinion and prints the reporter page as a blank. Quotations are attributed by opinion — the Court’s, Gorsuch’s concurrence, Kagan’s dissent — and you should pin to the reporter if you cite a passage in written work.

Clinton v. City of New York

524 U.S. 417 (1998) · Westlaw

The Line Item Veto Act of 1996 let the President, after signing a bill, “cancel in whole” three kinds of provisions in it: “(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.” 524 U.S. at 436 (quoting 2 U.S.C. § 691(a)). A cancellation prevented the item “from having legal force or effect.” Congress could restore it only by passing a new bill, which the President could then veto in the ordinary way. In August 1997 President Clinton canceled two provisions. One was § 4722(c) of the Balanced Budget Act of 1997, which spared New York from repaying federal Medicaid money tied to its taxes on health care providers. The other was § 968 of the Taxpayer Relief Act of 1997, a tax deferral meant to help farmers’ cooperatives buy processing plants. That is how the City of New York and a potato growers’ cooperative became the appellees. The case is assigned as the second half of a pair with Chadha. There, Congress tried to keep a piece of lawmaking for itself. Here, Congress tried to give a piece of it to the President. The Court said no both times, and for the same reason.

The holding. Stevens, for six: “In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each.” Id. at 438. ”‘[R]epeal of statutes, no less than enactment, must conform with Art. I.’” Ibid. (quoting INS v. Chadha, 462 U.S. 919, 954 (1983)). Then the sentence to learn: “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Ibid. The Presentment Clause gives the President one move on a bill: sign it or return it, whole. A statute that lets him sign the whole and then strike parts produces a law that no Congress ever passed in that form.

Why Field v. Clark did not save it. The Government’s best precedent was Field v. Clark (1892). There the Court upheld a tariff statute that let the President suspend duty exemptions when he found other nations’ duties unequal and unreasonable. Stevens distinguishes it, and the distinction that matters is this one: “whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute. In contrast, whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.” Id. at 444. Keep that line next to Whitman. A delegation is valid when the President carries out Congress’s policy. It is invalid when he substitutes his own.

The Court names the only way to get a line-item veto. “If there is to be a new procedure in which the President will play a different role in determining the final text of what may ‘become a law,’ such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.” Id. at 449.

Kennedy, concurring, answers the argument that nobody was hurt. The Act moved power between two branches, and both of them wanted it that way. Kennedy’s answer: “Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.” Id. at 450.

The dissents make the functional case, and it is a strong one. Scalia, joined by O’Connor, says a power to cancel spending is the old power to decline to spend under another name: “there is not a dime’s worth of difference between Congress’s authorizing the President to cancel a spending item, and Congress’s authorizing money to be spent on a particular item at the President’s discretion. And the latter has been done since the founding of the Nation.” Id. at 466 (opinion concurring in part and dissenting in part). Breyer, dissenting, attacks the majority’s premise that anything was repealed: “When the President ‘canceled’ the two appropriation measures now before us, he did not repeal any law nor did he amend any law. He simply followed the law, leaving the statutes, as they are literally written, intact.” Id. at 474. On his view, the President “has simply executed a power conferred upon him by Congress,” in a statute that itself went through bicameralism and presentment. Id. at 475.

Where this sits in the module. The module has two theories. One: the courts decide, because the Constitution fixes how a law is made and the branches cannot agree their way around it. Two: if Congress and the President agree, that is enough. Clinton, like Chadha, is theory one. Nondelegation (Whitman, Gundy, Consumers’ Research) is where theory two usually wins.

Two questions. First, Scalia’s point: Congress could have achieved almost exactly the same result by appropriating lump sums and letting the President decide what to spend. If the form of the statute is the only thing that changed, is Clinton a rule about substance or a drafting instruction? Second, square this case with Field v. Clark and Whitman. If a statute said “this appropriation is void if the President finds it wasteful,” would that be an intelligible principle, or a cancellation?

A note on citation: pins are to the United States Reports, 524 U.S. 417, checked against the star pagination of the official report. The opinions are Stevens for the Court (joined by Rehnquist, Kennedy, Souter, Thomas and Ginsburg); Kennedy concurring; Scalia concurring in part and dissenting in part (joined by O’Connor, and by Breyer as to Part III); and Breyer dissenting (joined by O’Connor and Scalia as to Part III).