Amicus Curiae Brief — RMS of Georgia, LLC, dba Choice Refrigerants, Petitioner v. Environmental Protection Agency, et al.

No. 25-1079

In the Supreme Court of the United States

__________

RMS OF GEORGIA, LLC, D/B/A CHOICE REFRIGERANTS,

Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

__________

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the

District of Columbia Circuit

__________

BRIEF OF THE MANHATTAN INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

__________

April 13, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.

institute

i

QUESTION PRESENTED

Whether Congress violated the Vesting Clause of Article I by giving an executive agency unbounded discretion to choose which private parties are entitled to participate in a multibillion-dollar market?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 4

I. THE NONDELEGATION DOCTRINE IS

AN INTEGRAL PART OF

CONSTITUTIONAL STRUCTURE

AND HISTORY ................................................. 4

A. Nondelegation Was Important to the

Framers and Members of Early

Congresses ................................................... 5

B. The Nondelegation Doctrine Is Vital to

Our System of Separation of Powers .......... 8

C. The Doctrine Helps Ensure Democratic

Accountability and Political Stability ....... 11

II. THE INTELLIGIBLE-PRINCIPLE TEST

HAS BECOME UNWORKABLE—AND

WILL BE EFFECTIVELY

MEANINGLESS IF THE DECISION

BELOW IS ALLOWED TO STAND ............... 14

III.THIS CASE IS A GOOD, LIMITED

VEHICLE FOR REVIEWING THE

NONDELEGATION DOCTRINE .................. 17

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

295 U.S. 495 (1935) ................................................ 16

Am. Power & Light Co. v. Sec. & Exch. Comm'n,

329 U.S. 90 (1946) .............................................. 2, 17

City of Arlington, Tex. v. FCC,

569 U.S. 290, 315 (2013) ........................................ 20

Dep’t of Transp. v. Ass’n of Am. R.R.,

575 U.S. 43 (2015) ...................................... 16, 17, 18

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ................................................ 13

FCC v. Consumers’ Research,

606 U.S. 656 (2025) .......................................... 15, 17

Gundy v. United States,

588 U.S. 128 (2019) .................... 2, 10, 14, 15, 18, 19

Igas Holdings, Inc., et al., v. EPA,

146 F.4th 1126 (D.C. Cir. 2025)............................. 17

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) ................................................ 15

Learning Res., Inc. v. Trump,

146 S. Ct. 628 (2026) .............................................. 14

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................ 13

Loving v. United States, 517 U.S. 748 (1996) ........... 19

Mistretta v. United States, 488 U.S. 361 (1989) ....... 16

Morrison v. Olson, 487 U.S. 654 (1988) .................... 10

iv

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ............................................ 4, 16

Paul v. United States, 589 U.S. 1087 (2019)............... 2

Touby v. United States, 500 U.S. 160 (1991) ............ 19

Other Authorities

1 Annals of Congress (Joseph Gales ed., 1834) .......... 5

1 Baron de Montesquieu, The Spirit of Laws

(Thomas Nugent trans., London, J. Nourse

& P. Vaillant 1758) (1748) ..................................... 10

3 Annals of Cong. (1791).............................................. 7

8 Annals of Cong. (1798).............................................. 8

Congress and the Public, Gallup.com ....................... 13

David Schoenbrod, Power Without

Responsibility: How Congress Abuses the

People Through Delegation (2008) ......................... 13

Federalist No. 47 (Madison) ...................................... 10

Ilan Wurman, Nondelegation at the Founding,

130 Yale L.J. 1490 (2021) ................................ 5, 6, 8

James Madison, The Report of 1800 (Jan. 7,

1800), Founders Online, Nat’l Archives .................. 8

John Locke, Second Treatise of Government

(1690) .................................................................... 4, 9

John O. McGinnis & Michael B. Rappaport,

Presidential Polarization,

83 Ohio St. L.J. 5 (2022) ........................................ 13

v

Markham S. Chenoweth & Michael P. DeGrandis,

Out of the Separation-of-Powers Frying Pan

and Into the Nondelegation Fire: How the

Court’s Decision in Seila Law Makes CFPB’s

Unlawful Structure Even Worse,

U. Chi. L. Rev. Online (2020) ................................ 14

Philip Hamburger, Nondelegation Blues,

91 Geo. Wash. L. Rev. 1083 (2023) .................... 6, 10

1

INTEREST OF AMICUS CURIAE 1

The Manhattan Institute (MI) is a nonprofit public

policy research foundation whose mission is to develop

and disseminate ideas that foster greater economic

choice and individual responsibility. It has historically

sponsored scholarship and filed briefs supporting the

separation of powers as a way to protect liberty and

promote democratically accountable government.

This case concerns MI because it implicates the

nondelegation doctrine, which helps ensure that the

legislative branch performs its function rather than

delegating it to unelected administrative agencies.

SUMMARY OF ARGUMENT

The American Innovation and Manufacturing act

of 2020 (AIM Act) is an unconstitutional delegation of

legislative power to the executive branch. It contains

no rules, no guidelines, and no instructions on how the

EPA should carve up a multi-billion-dollar industry.

The only way the lower court was able to ascertain a

“rule” was by smuggling in guidelines from a different

statute that is not referenced in the AIM Act. This case

is an opportunity for the Court to reassess the viability

of the nondelegation doctrine and to say whether the

intelligible-principle test is still valid.

The nondelegation doctrine is crucial to the history

and theory of the Constitution. It goes to the heart of

America’s Founding and plays a central role in ensuring the proper separation of powers. James Madison

and members of the first Congress debated non1 Rule 37 statement: All parties were timely notified of the

filing of this brief. No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

delegation soon after ratification and considered it an

integral part of maintaining a democratically accountable government that preserves liberty. The Constitution’s tripartite structure creates an obvious need for

the nondelegation doctrine, to ensure that no branch

usurps another’s powers nor divest itself of its own.

Over the years, the test for nondelegation has become increasingly vague and lax, such that it is “constitutionally sufficient if Congress clearly delineates

the general policy, the public agency which is to apply

it, and the boundaries of this delegated authority.”

Am. Power & Light Co. v. Sec. & Exch. Comm'n, 329

U.S. 90, 105 (1946). That means that even vague statutes calling for regulation in “the public interest” can

pass muster under the intelligible-principle test. Some

on this Court are skeptical that the rule is either functional or constitutionally faithful. See, e.g., Gundy v.

United States, 588 U.S. 128, 160–69 (2019) (Gorsuch,

J., dissenting); Paul v. United States, 589 U.S. 1087

(2019) (Kavanaugh, J., respecting denial of certiorari).

This case demonstrates how far we have moved

away from a robust, proper, and even meaningful nondelegation doctrine. The delegation to the EPA by Congress was so broad that the government did not hide

that it had an essentially unlimited authority to allocate hydrofluorocarbon (HFC) allowances. It even relied on this Court’s lax delegation jurisprudence in responding to comments, saying this Court has “over and

over upheld even very broad delegations.” Pet.11. The

D.C. Circuit then doubled the constitutional harm by

supplying an “intelligible principle” for the AIM Act

transplanted from Title VI of the Clean Air Act.

Pet.13–14. Oddly, the court did that despite the EPA’s

claiming during rulemaking that it was not obligated

3

to follow Title VI’s market-share approach. Pet.14.

That not only creates a second violation of separationof-powers principles, Pet.21–25, but makes the woeful

state of the nondelegation doctrine even worse. Now,

not only does Congress not have to supply intelligible

principles for guidance—or any principle at all, as in

this case—but agencies that administer many complex

statutes (i.e., most of them) can now use those statutes

as a kind of cross-referencing tool to defend rulemakings. That is so even when, as here, one statute

explicitly doesn’t incorporate the other.

That makes this a good case for the Court to provide greater doctrinal clarity. The guideline-less AIM

Act, combined with D.C. Circuit overreach, could ensure that nondelegation is truly dead, even though this

Court has not (officially) killed it. After all, nondelegation challenges to agency actions are likely to go

through the D.C. Circuit, which has now authorized itself sua sponte to comb through multiple statutes to

conjure otherwise absent intelligible principles.

Also, this case touches on unique policy questions,

so giving nondelegation more jurisprudential weight

need not undermine broader precedents and agencies.

There are many agencies that rely on delegated congressional power, and many statutes that give authority in different ways. Those statutes usually supply

more than nothing for guidance, but here “the Congress has declared no policy, has established no standard, has laid down no rule.” Panama Refining Co. v.

Ryan, 293 U.S. 388, 430 (1935). Plus, environmental

policy is quite separate from issues of inherent executive authority that intertwine questions of Article I

and Article II powers. This case also features a recent

delegation to the EPA and a subsequent troublesome

4

ratification by the lower court. It provides a clean vehicle for clarifying the nondelegation doctrine.

The lack of enforcement of the nondelegation doctrine has served as cover for vast delegations of lawmaking authority from the legislative branch to the executive branch. These delegations are increasingly creating problems of democratic accountability and excessive political conflict as power is centralized around

control over the presidency and the administrative

state. Agencies create most of the rules Americans live

under, and the country experiences policy whiplash

each time the presidency changes.

Well before the American Revolution, John Locke

wrote that “[t]he legislative cannot transfer the power

of making laws to any other hands; for it being but a

delegated power from the people, they who have it cannot pass it over to others.” John Locke, Second Treatise

of Government §141 (1690). Locke expressed what became written in the Constitution: the over-delegation

of legislative power endangers liberty. Nondelegation

serves as a bulwark for protecting each branch by preventing divestment. The Court should take this case to

ensure a robust and functional nondelegation doctrine.

ARGUMENT

I. THE NONDELEGATION DOCTRINE IS AN

INTEGRAL PART OF CONSTITUTIONAL

STRUCTURE AND HISTORY

While courts, including the D.C. Circuit in this

case, have often reduced nondelegation to an empty

platitude, it has deep roots in our history. The principle is a cornerstone of liberal, democratic government.

First, it was understood and applied at the Founding.

From the earliest debates in the first sessions of

5

Congress, representatives were concerned about Congress doing its job rather than giving it away to the

executive branch. Second, nondelegation fits into the

broader constitutional structure and serves to separate the powers between the different branches of government. And third, the nondelegation of legislative

power protects democratic accountability and political

stability within our system of government.

A. Nondelegation Was Important to the

Framers and Members of Early Congresses

In 1789, during the first Congress under the new

Constitution, James Madison proposed an amendment

for the Bills of Rights related to nondelegation. This

amendment would have specified that no branch of

government could exercise the powers delegated to another branch. Ilan Wurman, Nondelegation at the

Founding, 130 Yale L.J. 1490, 1504–05 (2021). Rep.

Sherman argued that the amendment was “unnecessary, inasmuch as the Constitution assigned the business of each branch of the Government to a separate

department.” 1 Annals of Congress 760 (Joseph Gales

ed., 1834). Madison agreed but noted that the amendment might allay some fears by clarifying that the

“powers ought to be separate and distinct.” Id. The

amendment would pass the House but was blocked in

the Senate for unknown reasons.

Madison believed nondelegation was already present in the Constitution but sought to make it explicit.

Many state constitutions had specific separation-ofpowers clauses, such as the Virginia Constitution of

1776 and the New Hampshire Constitution of 1784.

Often, those clauses in state constitutions were not

clear and later changes needed to be made to account

for necessary checks and balances. Philip Hamburger,

6

Nondelegation Blues, 91 Geo. Wash. L. Rev. 1083,

1131–34 (2023). Moreover, the needs of those state

governments often made it difficult to abide by those

clauses in a strict sense. The clause in New Hampshire’s constitution, for example, called for strict separation of powers “as is consistent with that chain of

connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.” Id.

at 1133 (quoting N.H. Const. of 1784, art. XXXVII).

This is likely one reason Madison’s amendment did not

pass the Senate; legislators may have felt that the

Constitution’s structure already ensured proper separation of powers, such that a more explicit clause could

add confusion, as it surely did in New Hampshire.

In 1791, during the Second Congress, the first great

debate around the nondelegation doctrine emerged. A

bill was proposed to establish a post office and post

roads throughout the country—legislation arising

from an enumerated power of Congress. Wurman, supra, at 1506–12. Theodore Sedgwick, a representative

from Massachusetts, proposed an amendment that replaced the part precisely describing where the roads

would go with “by such route as the President of the

United States shall, from time to time, cause to be established.” Id. at 1506–07. The amendment was rejected, and several representatives took issue with the

bill’s delegation of power to the president.

For example, Rep. Hartley argued that “the Constitution seems to have intended that we should exercise

all the powers respecting the establishing [of] post

roads we are capable of,” and added, “[w]e represent

the people, we are constitutionally vested with the

power of determining upon the establishment of post

roads; and, as I understand at present, ought not to

7

delegate the power to any other person.” 3 Annals of

Cong. 231 (1791). Rep. Page agreed, offering a joking

suggestion that they “could save a deal of time and

money” by leaving the “business of the Post Office to

the President” as well as “any other business of legislation” and then the Congress could adjourn and go

home. Id. at 233–34. Madison noted that “there did not

appear to be any necessity for alienating the powers of

the House; and that if this should take place, it would

be a violation of the Constitution.” Id. at 238–39. In

total, five representatives made statements opposing

Sedgwick’s amendment on nondelegation grounds.

Moreover, reporters of the second Congress commented that Sedgwick “thought it sufficient that the

House should establish the principle and then leave it

to the Executive to carry it into effect.” Id. at 230. It

seems that even Sedgwick did not argue for an openended delegation, because he thought that the “House

should establish the principle” to guide the executive.

That is more than is supplied by the AIM Act here.

There is further evidence of a well-grounded nondelegation doctrine from the Alien and Sedition Acts

controversy in the late 1790s. After the acts were enacted, two states, Kentucky and Virginia, passed resolutions condemning them as unconstitutional. Madison wrote the Virginia Resolution and also a report

that explained the resolution and his opposition.

The report pointed out that the Alien Friends Act,

one of the four laws that made up the Alien and Sedation Acts, authorized the “President of the United

States . . . to order all such aliens as he shall judge

dangerous to the peace and safety of the United

States” to depart the country. Wurman, supra, at

1512. For Madison, this was too broad of a delegation

8

that did not contain “details, definitions, and rules, as

appertain to the true character of a law.” James Madison, The Report of 1800 (Jan. 7, 1800), Founders

Online, Nat’l Archives, https://tinyurl.com/2s34x6h2.

He observed that the act gives powers to the executive

that are “so general and undefined, as to be of a legislative, not of an executive or judicial nature.” Id. Because the vague delegation did not lay “down any precise rules,” then it might as well be the case that the

“whole power of legislation might be transferred by the

legislature from itself, and proclamations might become substitutes for laws.” Id.

Although written at a time of partisan rancor—and

when Madison didn’t hold office—the father of the

Constitution continued his opposition to delegation

without “any precise rules” that he had maintained

since the first Congress. And some members of Congress shared that objection, such as Rep. Livingston,

who argued the act “empowered [the president] to

make the law, to fix in his mind what acts, what words,

what thoughts or looks, shall constitute the crime contemplated by the bill.” 8 Annals of Cong. 2008 (1798).

The historical record—Madison’s proposed amendment, debates around the Post Roads Clause, and the

response to the Alien and Sedition Acts—shows that

the founding generation embraced the idea of nondelegation of powers between government branches.

B. The Nondelegation Doctrine Is Vital to

Our System of Separation of Powers

Ask someone on the street what he knows about the

Constitution beyond the Bill of Rights, and you might

get “separation of powers.” Not many may be able to

9

define it, but the concept sticks in the mind. Rightfully

so, as it’s a core element of the structural Constitution.

The principle of nondelegation emerges organically

from the separation of powers and the vesting of those

powers in specific branches. Our constitutional structure was informed by political theorists such as John

Locke, who clearly opposed delegation, especially delegation of legislative power. Locke, supra, §141. Yet,

even without resorting to political philosophers—who

most average colonists of course hadn’t read—the nondelegation doctrine was crucial to consensual government. The generation that rallied under the slogan “no

taxation without representation” was keen on having

legislative power derive from the people. Consent

came from representation—and only one part of the

government, the House, directly represented the people in the original Constitution. Over-delegation undermines consensual government. Cf. Morrison v. Olson, 487 U.S. 654, 727 (1988) (explaining that powers

are separated “not merely to assure effective government but to preserve individual freedom”).

Accordingly, the Constitution “vests” power in each

of the three branches. More specifically, the Constitution says that the powers “shall be vested” in each

branch of government. This phrasing is not accidental.

“Shall be” denotes not only the transfer of power, but

where that power is located—it shall be in the Congress, or shall be in president, etc. Thus, “[a]ccompanying that assignment of power to Congress is a bar on

its further delegation.” Gundy, 588 U.S. at 135 (Gorsuch, J., dissenting). A power that is vested could theoretically be divested, but a power that “shall be

vested” not only grants the specific powers to each

branch of government but also commands their

10

location. The nondelegation doctrine is the glue that

ensures that this vesting of power in each branch remains true to the constitutional mandate.

This textual analysis is not simply hair-splitting

literalism; it emerges from basic constitutional theory.

The principle of the separation of powers was a cherished idea of political thought for the 18th-century

American colonists. Madison noted that the separation

of powers was an “essential precaution in favor of liberty” and that “[n]o political truth is certainly of

greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty.” Federalist

No. 47 (Madison). Madison had read the French political theorist Baron de Montesquieu, the “preeminent

theorist of separation.” Hamburger, supra, at 1129.

Montesquieu wrote that the three powers of government—legislative, executive, and judicial—need to be

divided: “there is no liberty, if the power of judging be

not separated from the legislative and executive” lest

“the judge would be then the legislator.” 1 Baron de

Montesquieu, The Spirit of Laws 216 (Thomas Nugent

trans., London, J. Nourse & P. Vaillant 1758) (1748).

Montesquieu noted that in despotic Turkey, where the

three powers were united in the Sultan, “the subjects

groan[ed] under the . . . oppression.” Id. at 216–17.

Yet separation of powers is combined with checks

and balances, so Madison also noted that no branch

could be “totally separate and distinct from each

other.” Federalist No. 47 (Madison). Exceptions to the

separation of powers are explicit and limited, such as

the presidential veto power and its congressional override. These limited exceptions ensure that separation

11

of powers does not become an empty platitude but is

grounded in the Constitution’s structural roots.

Delegating a power that “shall be” vested in one

branch is a proscribed divestment. The nondelegation

doctrine protects the specific powers of each branch

and preserves the Framers’ overall equilibrium.

C. The Doctrine Helps Ensure Democratic

Accountability and Political Stability

The Constitution divides power between branches

according to the branch’s proper function in a republican government. The laws start with Congress, which

represents the people most directly, then they are executed by the president, who has some democratic accountability but not enough to declare sweeping and

binding laws. When powers are delegated between

branches differently than envisioned by the Constitution, this structure is distorted.

The president is not representative of the people in

all their specificity as the Congress is. Executive agencies are certainly not representative. Delegating legislative power to the executive may not forbid anyone

from voting, but it certainly dilutes the value of a vote

for and in Congress. Unelected bureaucrats who are

delegated legislative power have essentially taken

power out of the hands of the individual voter.

The contours of our Constitution thus protect democratic accountability—and nondelegation is the tool

through which courts can stop the devaluation of voting rights by returning legislative power to Congress.

While there are few cases that precisely delineate the

nondelegation doctrine, that does not preclude the

Court from invoking it now. As Justice Gorsuch noted

when reflecting on the concept of stare decisis, “a past

12

decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart

from what the Constitution or laws of the United

States ordain.” Loper Bright Enters. v. Raimondo, 603

U.S. 369, 423 (2024) (Gorsuch, J., concurring).

Indeed, the Court has recently taken steps to stop

the usurpation of democratic authority in other areas.

For example, in Dobbs, it overruled precedent that had

usurped voters’ prerogative by establishing a federal

right to abortion through judicial fiat. The Court specifically noted that Roe v. Wade and Planned

Parenthood v. Casey had “short-circuited the democratic process by closing it to [a] large number of Americans.” Dobbs v. Jackson Women’s Health Org., 597

U.S. 215, 269 (2022). Dobbs affirmed that “[t]he Constitution is neutral and leaves the issue for the people

and their elected representatives to resolve through

the democratic process in the States or Congress—like

the numerous other difficult questions of American social and economic policy that the Constitution does not

address.” Id. at 338 (Kavanaugh, J., concurring).

This Court has also recently taken action to stop

aggressive executive action and ensure that rulemaking for important constitutional powers such as taxes

and tariffs remain in the hands of Congress. In Learning Resources, Inc. v. Trump, the Court struck down

the president’s attempted use of a broad statute to establish tariffs. That opinion did not invoke nondelegation, but the Court was emphatic that “[i]n a very real

sense, then, when it comes to legislative power, Congress is the principal and executive officials are the

13

agents.” Learning Res., Inc. v. Trump, 146 S. Ct. 628,

653 (2026) (Gorsuch, J., concurring).

Increased democratic accountability can also promote political stability, because over-delegation has

enabled the rapid expansion of the administrative

state. Congress simply transfers hard regulatory questions to agencies, allowing it to wash its hands of complex questions of lawmaking. See generally, David

Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (2008).

What results is the slow eradication of consensual lawmaking; the laws that bind Americans increasingly are

not being consented to through voting for elected representatives. And Congress has incentives to abdicate

its responsibility because it can “merely announce

vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”

Gundy, 588 U.S. at 153 (Gorsuch, J., dissenting).

All of this can create alienation among a public that

is losing faith in their representatives’ ability to meaningfully create law. As of February 2026, only 16% of

Americans approve of Congress’s performance, which

is roughly on par with the past few years of polling.

Congress and the Public, Gallup, https://tinyurl.com/7w6atwr9. This dynamic breeds resentment

and eventually political conflict. The party of the president becomes more important as executive fiat replaces legislative action in the Congress. “And when a

President of the opposite party enters office, newly empowered agency heads can often change the rules 180

degrees.” John O. McGinnis & Michael B. Rappaport,

Presidential Polarization, 83 Ohio St. L.J. 5, 6 (2022).

As a result, the rules “reflect not the public deliberations of elected representatives, but the concerns of

14

small cadres of elites. And as those cadres turn over

from administration to administration, the rules revolve, too, inflicting whiplash on those who must live

under them.” FCC v. Consumers’ Research, 606 U.S.

656, 745 (2025) (Gorsuch, J., dissenting).

II. THE INTELLIGIBLE-PRINCIPLE TEST HAS

BECOME UNWORKABLE—AND WILL BE

EFFECTIVELY MEANINGLESS IF THE

DECISION BELOW IS ALLOWED TO STAND

Current Supreme Court doctrine seeks to implement ideas of nondelegation through the “intelligible

principle” test. J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394, 409 (1928) (“If Congress shall lay

down by legislative act an intelligible principle to

which the person or body authorized to fix such rates

is directed to conform, such legislative action is not a

forbidden delegation of legislative power.”). But many

judges and scholars have noted that the test is ineffective. It “has been abused to permit delegations of legislative power that on any other conceivable account

should be held unconstitutional.” Gundy, 588 U.S. at

164 (Gorsuch, J., dissenting). Indeed, some scholars

have referred to the test as a “fiction.” See e.g., Markham S. Chenoweth & Michael P. DeGrandis, Out of the

Separation-of-Powers Frying Pan and Into the Nondelegation Fire: How the Court’s Decision in Seila Law

Makes CFPB’s Unlawful Structure Even Worse, U. Chi.

L. Rev. Online (2020), https://perma.cc/UF49-4B5R.

There are very few guidelines for what constitutes

an “intelligible principle.” For example, anyone from

the attorney general to even semi-private bodies like

Amtrak can be delegated authority. See Gundy, 588

U.S. at 135–36; Dep’t of Transp. v. Ass’n of Am. R.R.,

15

575 U.S. 43, 53–54 (2015). Additionally, it is unclear if

the intelligible-principle test is a static rule or if it

changes over time, allowing for evermore broad directives as society gets more complex and creating strict

statutory guidelines becomes harder. This Court’s “jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems,

Congress simply cannot do its job absent an ability to

delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372 (1989).

The nondelegation doctrine once had teeth, with a

unanimous vote of this Court in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and an

8–1 vote in Panama Refining Co. v. Ryan, 293 U.S. 388

(1935). Panama Refining is most apt here. The Court

observed that “the Congress ha[d] declared no policy,

ha[d] established no standard, ha[d] laid down no rule.

There is no requirement, no definition of circumstances and conditions in which the transportation is

to be allowed or prohibited.” Id. at 430. That guideline-less, over-delegation was so extreme that

were held valid, it would be idle to pretend that

anything would be left of limitations upon the

power of the Congress to delegate its law-making function. The reasoning of the many decisions we have reviewed would be made vacuous

and their distinctions nugatory. Instead of performing its law-making function, the Congress

could at will and as to such subjects as it chose

transfer that function to the President or other

officer or to an administrative body.

Id.

16

That warning in 1935 seems to be the world we live

in now. The AIM Act is as deficient as the “hot oil” act

was in Panama Refining. The AIM Act simply authorizes the EPA to phase down HFCs within a 15-year period. But as to the allowances of who can continue to

use HFCs, only a few instructions are given covering

2% of the market. The remaining 98% of HFC users,

however, are given market share at the discretion of

the EPA. Pet.17–18. This is beneath the most basic

“constitutionally sufficient” threshold that “clearly delineates the general policy, the public agency which is

to apply it, and the boundaries of this delegated authority.” Am. Power & Light Co., 329 U.S. at 105.

The AIM Act may have a general policy, and it may

apply to a specific agency, but it has no boundaries to

its delegated authority. The lower court argues that

allocating “allowances in a cap-and-trade program is

the sort of ‘technical issue’ for which little guidance is

necessary.” Igas Holdings, Inc., et al., v. EPA, 146

F.4th 1126, 1140 (D.C. Cir. 2025). However, this “technical issue” is a question of whether thousands of businesses will be able to produce and consume HFCs.

Many companies in the refrigerant industry could face

extinction, all at the whims of the EPA. If the AIM Act

passes muster with the intelligible-principle test, then

it seems there is no test at all. As Justice Kavanaugh

recently noted, the intelligible-principle test “has historically not packed much punch in constricting Congress’s authority to delegate.” Consumers’ Research,

620 U.S. at 705 (Kavanaugh, J., concurring). See also

Ass’n of Am. R.R., 575 U.S. at 77 (Thomas, J., concurring) (noting that “the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition”).

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The government has already essentially admitted

that there is no intelligible principle. The lower court

found one in a different statute. So the question here

is not whether the AIM Act constituted an excessive

delegation of authority but rather whether the Court

has abandoned “all pretense of enforcing a qualitative

distinction between legislative and executive power.”

Id. at 84 (Thomas, J., concurring).

III. THIS CASE IS A GOOD, LIMITED VEHICLE

FOR REVIEWING THE NONDELEGATION

DOCTRINE

It is unlikely that blocking a portion of the AIM Act

will upend other delegations. Whereas previous delegations of lawmaking authority rested on a minimum

directive, the AIM Act provides no guidelines. So the

Court can comfortably explain that no guidance is a

bridge too far, while not necessarily imperiling statutes that give at least some principles, whether “intelligible” or not.

In other words, the HFC portion of the AIM Act is

a specific and relatively limited piece of legislation

that won’t immediately endanger other reliance interests. Administrative rulemaking has a deep basis in

U.S. law. Rulemaking authority comes in many forms

and derives from many statutes. The AIM Act is of relatively recent vintage and contains a particularly overbroad delegation. Legislation that delegates authority

to agencies like the FCC, SEC, FINRA, or the USDA is

deeply settled and unlikely to be thrown into jeopardy.

Moreover, to some degree “the scope of the problem

[with the intelligible principle test] can be overstated.”

Gundy, 588 U.S. at 165 (Gorsuch, J., dissenting). Some

statutes may seem to lack an intelligible principle but

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implicate inherent executive authority. See, e.g., Loving v. United States, 517 U.S. 748 (1996) (holding that

the president’s power to prescribe aggravating factors

in military justice is connected to inherent presidential

authority). Other statutes delegate a relatively openended type of fact-finding. See, e.g., Touby v. United

States, 500 U.S. 160 (1991) (upholding a broad delegation to the attorney general to temporarily add substances to the Controlled Substance Act after making

certain factual determinations). Fact-finding delegations as in Touby might require a different standard

than the monolithic intelligible-principle test, but that

is unclear because this Court hasn’t much developed

the test. Cf. Gundy, 588 U.S. at 166 (Gorsuch, J., dissenting) (“To determine whether a statute provides an

intelligible principle, we must ask: Does the statute assign to the executive only the responsibility to make

factual findings?”). The AIM Act doesn’t implicate

these questions.

The Court could consider articulating a strengthened intelligible-principle test that ensures the continued separation of powers and restores democratic responsibility to the Congress. Alternatively, the Court

might consider doing away with the test entirely and

presenting a new approach to nondelegation that

would similarly seek to uphold the Constitution’s separations of power and democratic accountability.

Regardless, in rearticulating the nondelegation

doctrine, the Court should ensure that its jurisprudence preserves liberty by maintaining that substantive rules and policies ultimately derive from elected

representatives, not civil servants. With the current

regime, “the citizen confronting thousands of pages of

regulations—promulgated by an agency directed by

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Congress to regulate, say, ‘in the public interest’—can

perhaps be excused for thinking that it is the agency

really doing the legislating.” City of Arlington, Tex. v.

FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting). Voters often does not know whom to blame—or

credit—for a policy, and, even if they did, their votes

are unlikely to change most regulations.

Some type of delegation is likely needed and even

warranted by the Constitution. But that reality should

not bar the Court from reasserting basic constitutional

norms. The rapid expansion of the administrative

state and lawmaking executive agencies has created

an unstable and undemocratic situation wherein Congress allows bureaucrats to make most of the rules by

which we live our daily lives.

CONCLUSION

The Court should clarify if the nondelegation doctrine still has constitutional legs. For the foregoing

reasons, and those stated in the petition, the Court

should grant certiorari.

Respectfully submitted,

April 13, 2026

Ilya Shapiro

Counsel of Record

Trevor Burrus

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute