On Wednesday, the Supreme Court heard a case that poses the most direct challenge yet to the legitimacy of the modern federal government.
- The target is the “administrative state”—the agencies and institutions that set standards for safety in the workplace, limit environmental hazards and damage, and impose rules on financial markets to ensure their stability and basic fairness, among many other important things.
- Terrifyingly, this gambit might succeed.
The most far-reaching constitutional argument is built on the “nondelegation doctrine,” which holds that there may be some limits on the kinds of powers that Congress can give to agencies.
- It argues that, when Congress gave the SEC the power to decide whether to bring enforcement actions in court or in front of an independent agency adjudicator, it gave away a core legislative function.
- It thus violated the doctrine and engaged in an unconstitutional delegation.