By Jeremy J. Broggi, an associate, and Bert W. Rein, a founding partner, of Wiley Rein LLP in Washington, DC.

The policymaking power routinely exercised by unelected officials in federal agencies is under pressure from both sides of the ideological spectrum.  On the right, libertarians and regulated businesses rail against the “deep state.”  On the left, there is concern about a deregulatory Executive Branch’s new and revised statutory interpretations by.  Both sides turn to the courts for relief.

A majority of the U.S. Supreme Court under Chief Justice John Roberts has shown some sympathy for the Trump Administration’s revisions of prior regulatory policies but continues to express discomfort with an administrative state that “wields vast power and touches almost every aspect of daily life.”  See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010).  While the Court’s reining in of regulation has so far been limited, an important dissent from Justice Gorsuch in Gundy v. United States, 139 S. Ct. 2116 (2019), may foretell a broader effort.  There, Justices Gorsuch, Roberts, and Thomas articulated a vision for restoring congressional accountability for administrative regimes by revitalizing the long-dormant nondelegation doctrine.  Although their view did not command a majority in Gundy, the dissent may presage a coming sea change in judicial review of agency rules implementing broad Congressional directives.