Client Alert: Racing On The Emergency Docket

Many skeptics of the regulatory state root their arguments in separation of powers principles: Congress is tasked with lawmaking, the judiciary is tasked with interpreting the laws, and executive agencies cannot encroach on Congress or the judiciary's roles. In the wake of the Supreme Court's Loper Bright and Relentless decisions last term overturning Chevron deference—wherein the Court held that the 40-year-old doctrine deferring to agencies' interpretation of ambiguous laws contravened courts' role of interpreting laws—other doctrines of agency skepticism have percolated. One such doctrine, the private nondelegation doctrine, sits at the Supreme Court's doorstep.

The nondelegation doctrine is a principle restricting Congress from ceding its legislation power to other entities. A related but distinct principle, the private non-delegation doctrine, restricts the legislative branch from transferring certain powers to private actors. In short, “a private entity may