By Brett A. Shumate  a Partner, and John Cheretis, an Associate, with Jones Day in its Washington, DC office.

Editor’s note: This is Brett Shumate’s inaugural post as the WLF Legal Pulse‘s Featured Expert Contributor on Administrative Law & Separation of Powers. Brett joins 13 other private practitioners and one law professor who write regularly for our blog on specific legal and policy matters. Before joining Jones Day, Brett was the Deputy Assistant Attorney General for the Civil Division’s Federal Programs Branch at the U.S. Department of Justice.

In a recent statement concerning the Supreme Court’s denial of certiorari in a case from the Sixth Circuit, Paul v. United States (contained in a November 25 order of the Court), Justice Kavanaugh appeared to prime the Court for future consideration of a potentially significant limitation on federal agency rulemaking authority. While acknowledging that the case in question was an improper vehicle to examine the issue, Justice Kavanaugh suggested that the Constitution’s “nondelegation doctrine” may prohibit Congress from delegating its authority to decide “major policy questions” of great economic and political importance to federal agencies.

In his statement, Justice Kavanaugh suggested that the Court currently allows administrative agencies to issue rules involving major policy questions where Congress has either (1) expressly decided the major policy question itself, and merely delegates the authority to regulate and enforce the decision to the agency, or (2) expressly delegates both the authority to decide as well as the authority to regulate and enforce the decision to the agency. It is this latter category, according to Justice Kavanaugh, that may be impermissible under the nondelegation doctrine.

Justice Kavanaugh cited an opinion authored by then-Justice Rehnquist arguing that major national policy decisions must remain under the purview of the elected branches, and thus may not be delegated by Congress to the Executive Branch. He also cited Justice Gorsuch’s dissenting opinion in Gundy v. United States. In Justice Kavanaugh’s view, the nondelegation doctrine would prevent Congress from expressly delegating unbridled regulatory authority to decide major issues.

This is not Justice Kavanaugh’s first foray into the major questions debate. While serving on the D.C. Circuit, Judge Kavanaugh discussed judicial standards for determining whether a challenged rule is aimed at resolving a “major policy question.” In 2017, the D.C. Circuit denied a petition to rehear a three-judge panel’s decision in USTelecom Ass’n v. FCC, which upheld the FCC’s 2015 net neutrality rule as a valid exercise of agency rulemaking authority. In dissent, then-Judge Kavanaugh argued that the FCC could not rely on an ambiguous grant of rulemaking authority contained in an older statute as a basis for claiming novel authority to promulgate such a major and sweeping rule.

In so doing, Judge Kavanaugh surveyed recurrent themes in Supreme Court precedent to identify several factors to consider in deciding whether an agency action involves a question of great economic and political importance: (1) the amount of money involved for regulated parties, (2) the overall impact on the economy, (3) the number of people affected, and (4) the degree of congressional and public attention to the issue. Judge Kavanaugh also indicated that judicial skepticism of an agency’s issuance of a “seemingly major rule” should be heightened when “an agency relies on a long-extant statute to support the agency’s bold new assertion of regulatory authority.”

By taking Justice Kavanaugh’s lead, the nondelegation doctrine may emerge as a powerful tool of constitutional restraint against overzealous agency rulemaking of major questions. Using the factors Judge Kavanaugh identified in his net neutrality dissent, ambitious agency rules may be susceptible to future challenge as the product of an impermissible grant of congressional rulemaking authority, even if Congress has expressly granted authority to decide major questions.