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.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE

STATES OF

WEST VIRGINIA AND 20 OTHER STATES

IN SUPPORT OF PETITIONER

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25306

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Matthew K. Niu

Caldwell Fellow

Counsel for Amicus Curiae State of West Virginia

II

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 3

Reasons for Granting the Petition...................................... 3

I.

Congress Cedes Legislative Power Away

With No Meaningful Check ..................................... 3

II.

The “Intelligible Principles” Test Must Go ........... 9

III.

The Court Can and Should Strengthen the

Nondelegation Doctrine......................................... 18

Conclusion ........................................................................... 22

III

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ..................................................... 7, 8

Allstates Refractory Contractors, LLC v.

Su,

144 S. Ct. 2490 (2024) ................................................... 19

Biden v. Nebraska,

600 U.S. 477 (2023) ................................................. 16, 17

Bond v. United States,

564 U.S. 211 (2011) ....................................................... 13

Briscoe v. Bank of Commw. of Ky.,

36 U.S. (11 Pet.) 257 (1837) .......................................... 13

Buttfield v. Stranahan,

192 U.S. 470 (1904) ....................................................... 20

Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798) ........................................ 4, 13

Carter v. Carter Coal Co.,

298 U.S. 238 (1936) ......................................................... 8

Clinton v. City of New York,

524 U.S. 417 (1998) ......................................................... 7

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

575 U.S. 43 (2015) ..................................................... 4, 10

Ernst & Ernst v. Hochfelder,

425 U.S. 185 (1976) ....................................................... 20

IV

Escanaba & Lake Mich. Transp. Co. v.

City of Chi.,

107 U.S. 678 (1883) ....................................................... 13

FCC v. Consumers’ Rsch.,

606 U.S. 656 (2025) ..................................... 1, 2, 8, 15, 18

Gamble v. United States,

587 U.S. 678 (2019) ......................................................... 4

Garcia v. San Antonio Metro. Transit

Auth.,

469 U.S. 528 (1985) ....................................................... 18

Gundy v. United States,

588 U.S. 128 (2019) ................................................. 12, 18

INS v. Chadha,

462 U.S. 919 (1983) ......................................................... 7

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

276 U.S. 394 (1928) ................................................... 8, 18

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................. 15, 17

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ................................................. 20, 21

Mistretta v. United States,

488 U.S. 361 (1989) ......................................................... 8

Mohamad v. Palestinian Auth.,

566 U.S. 449 (2012) ......................................................... 2

Morrison v. Olson,

487 U.S. 654 (1988) ......................................................... 5

Murphy v. NCAA,

584 U.S. 453 (2018) ................................................... 4, 13

Oklahoma v. United States,

144 S. Ct. 2679 (2024) ................................................... 19

V

Ortiz v. United States,

585 U.S. 427 (2018) ......................................................... 8

Panama Ref. Co. v. Ryan,

293 U.S. 388 (1935) ................................................... 7, 20

Paul v. United States,

589 U.S. 1087 (2019) ..................................................... 18

Printz v. United States,

521 U.S. 898 (1997) ....................................................... 13

SEC v. Jarkesy,

603 U.S. 109 (2024) ....................................................... 19

Smiley v. Holm,

285 U.S. 355 (1932) ....................................................... 14

Trump v. United States,

603 U.S. 593 (2024) ......................................................... 7

United States v. Nixon,

418 U.S. 683 (1974) ......................................................... 7

United States v. Rock Royal Co-op.,

307 U.S. 533 (1939) ......................................................... 2

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) .............................. 4, 19, 20

West Virginia v. EPA,

597 U.S. 697 (2022) ......................................... 2, 6, 12, 16

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ......................................................... 7

Constitutional Provisions

U.S. CONST. amend. X ........................................................ 13

U.S. CONST. art. I ........................................................... 4, 10

VI

U.S. CONST. art. I, § 1 ........................................................ 10

U.S. CONST. art. I, § 2 ........................................................ 13

U.S. CONST. art. I, § 7 ........................................................ 10

U.S. CONST. art. I, § 8 ........................................................ 13

U.S. CONST. art. I, § 8, cl. 18.............................................. 10

U.S. CONST. art. II.......................................................... 4, 10

U.S. CONST. art. III ........................................................ 4, 10

U.S. CONST. art. VI, cl. 2 .................................................... 11

Statutes

7 U.S.C. § 1311 .................................................................... 22

7 U.S.C. § 1314 .................................................................... 22

42 U.S.C. § 7651c ................................................................ 21

42 U.S.C. § 7651d ................................................................ 21

42 U.S.C. § 7675 .................................................................... 1

43 U.S.C. § 617 .................................................................... 22

43 U.S.C. § 617u .................................................................. 22

47 U.S.C. § 309 .................................................................... 22

49 U.S.C. § 41714 ................................................................ 22

49 U.S.C. § 41718 ................................................................ 22

Other Authorities

Aaron Gordon,

Nondelegation,

12 NYU J.L. & LIBERTY 718 (2019) ...................... 11, 12

VII

Aaron Gordon,

Nondelegation Misinformation: A

Reply to the Skeptics,

75 BAYLOR L. REV. 152 (2023) ..................................... 12

Adam J. White,

Learning from Laboratories of Liberty,

46 HARV. J.L. & PUB. POL’Y 303 (2023) ...................... 21

A.J. Kritikos,

Resuscitating the Non-Delegation

Doctrine: A Compromise and an

Experiment,

82 MO. L. REV. 441 (2017) ............................................ 17

Alexandra Klass,

State Innovation and Preemption:

Lessons from State Climate Change

Efforts,

41 LOYOLA L. REV. 1653 (2008) ................................... 15

Amy C. Barrett,

Suspension and Delegation,

99 CORNELL L. REV. 251 (2014) .............................. 6, 18

Anita S. Krishnakumar,

What the New Major Questions

Doctrine is Not,

92 G.W. L. REV. 1117 (2024) ........................................ 16

Antonin Scalia,

A Note on the Benzene Case,

4 AEI J. ON GOV’T & SOC’Y 25 (1980) .......................... 22

Ashraf Ahmed, et al.,

The Making of Presidential

Administration,

137 HARV. L. REV. 2131 (2024) ...................................... 6

VIII

Benjamin Silver,

Nondelegation in the States,

75 VANDERBILT L. REV. 1211 (2022) .......................... 21

Brian Chen & Samuel Estreicher,

The New Nondelegation,

102 TEX. L. REV. 539 (2024)......................................... 15

Daniel B. Rodriguez & Barry R. Weingast,

Engineering the Modern

Administrative State: Political

Accommodation and Legal Strategy in

the New Deal Era,

46 BYU L. REV. 147 (2021) ............................................ 6

David B. Froomkin,

The Nondelegation Doctrine and the

Structure of the Executive,

41 YALE J. ON REG. 60 (2024) ........................................ 9

David Schoenbrod,

Consent of the Governed: A

Constitutional Norm that the Court

Should Substantially Enforce,

43 HARV. J.L. & PUB. POL’Y 213 (2020) ........................ 8

David Schoenbrod,

The Delegation Doctrine: Could the

Court Give it Substance?,

83 MICH. L. REV. 1223 (1985) .................................... 8, 9

DAVID SCHOENBROD,

POWER WITHOUT RESPONSIBILITY:

HOW CONGRESS ABUSES THE PEOPLE

THROUGH DELEGATION (1993) .................................... 15

THE DECLARATION OF INDEPENDENCE

(U.S. 1776) ....................................................................... 3

IX

Douglas H. Ginsburg & Steven Menashi,

Nondelegation and the Unitary

Executive,

12 U. PA. J. CONST. L. 251 (2010) .................................. 9

Executive Branch Civilian Employment

Since 1940,

OPM, https://tinyurl.com/46jskbfh

(last accessed Apr. 7, 2026) ............................................ 5

Federal Register: Agencies,

NAT’L ARCHIVES,

https://tinyurl.com/48yff9n6

(last accessed Apr. 7, 2026) ............................................ 5

THE FEDERALIST NO. 33 ................................................... 10

THE FEDERALIST NO. 47 ..................................................... 4

THE FEDERALIST NO. 51 ..................................................... 4

THE FEDERALIST NO. 78 ..................................................... 4

THE FEDERALIST NO. 80 ..................................................... 4

THE FEDERALIST NO. 81 ..................................................... 4

Gary S. Lawson,

The Rise and Rise of the

Administrative State,

107 HARV. L. REV. 1231 (1994) ...................................... 9

GPO,

FY 2020 BUDGET OF THE U.S.

GOVERNMENT (2020),

https://tinyurl.com/dr97ej3w ......................................... 5

X

Comment,

The Lesson of Lopez: The Political

Dynamics of Federalism’s Political

Safeguards,

119 HARV. L. REV. 609 (2005) ...................................... 14

Herbert Wechsler,

The Political Safeguards of

Federalism: The Role of the States in

the Composition and Selection of the

National Government,

54 COLUM. L. REV. 543 (1954) ..................................... 14

Ilan Wurman,

Nondelegation at the Founding,

130 YALE L.J. 1490 (2021) ........................................... 12

Jason Iuliano & Keith E. Whittington,

The Nondelegation Doctrine: Alive and

Well,

93 NOTRE DAME L. REV. 619 (2017) ........................... 21

Jerry L. Mashaw,

Recovering American Administrative

Law: Federalist Foundations, 17871801,

115 YALE L.J. 1256 (2006) .............................................. 5

Jessica Bulman-Pozen,

Partisan Federalism,

127 HARV. L. REV. 1077 (2014) .................................... 14

Jonathan S. Gould,

The Law of Legislative Representation,

107 VA. L. REV. 765 (2021) ........................................... 14

Joseph Diedrich,

Delegation Running Ratchet,

104 TEX. L. REV. ONLINE 205 (2026) .......................... 17

XI

Joseph Postell & Randolph J. May,

The Myth of the State Nondelegation

Doctrines,

74 ADMIN. L. REV. 263 (2022) ...................................... 22

Julian Davis Mortenson & Nicholas

Bagley,

Delegation at the Founding,

121 COLUM. L. REV. 277 (2021) ................................... 12

M.J.C. VILE,

CONSTITUTIONALISM AND THE

SEPARATION OF POWERS (2d ed. 1998)

(1967) .............................................................................. 10

Neomi Rao,

Administrative Collusion: How

Delegation Diminishes the Collective

Congress,

90 NYU L. REV. 1463 (2015) .......................................... 6

Neomi Rao,

Why Congress Matters: The Collective

Congress in the Structural

Constitution,

70 FL. L. REV. 1 (2018) ................................................. 14

Peter L. Strauss,

The Place of Agencies in Government:

Separation of Powers and the Fourth

Branch,

84 COLUM. L. REV. 573 (1984) ....................................... 5

Pet. for Cert.,

Pheasant v. United States,

No. 25-6911 (U.S. filed Feb. 20, 2026) ........................ 19

XII

Philip B. Kurland,

The Constitution: The Framers’ Intent,

the Present and the Future,

32 ST. LOUIS UNIV. L. J. 17 (1987) ................................ 4

The Plan of Charles Pinckney (South

Carolina), Presented to the Federal

Convention,

YALE L. SCH.,

https://tinyurl.com/ym6tm3b9

(last accessed Apr. 7, 2026) .......................................... 11

R. Kent Weaver,

The Politics of Blame Avoidance,

6 J. PUB. POL’Y 371 (1986).............................................. 6

THE RECORDS OF THE FEDERAL

CONVENTION OF 1787

(Max Farrand ed., 1911) ........................................ 11, 15

Ronald A. Cass,

Deference to Agency Rule

Interpretations: Problems of

Expanding Constitutionally

Questionable Authority in the

Administrative State,

19 THE FEDERALIST SOC’Y REV. 54

(2024) ................................................................................ 6

Samuel Joyce,

Testing the Major Questions Doctrine,

43 STAN. ENV’T L. J. 52 (2024) ................................... 16

Scott A. Keller,

How Courts Can Protect State

Autonomy From Federal

Administrative Encroachment,

82 S. CAL. L. REV. 45 (2008) ........................................ 15

XIII

Robert R.M. Verchick & Nina Mendelson,

Preemption and Theories of

Federalism, in PREEMPTION CHOICE:

THE THEORY, LAW, AND REALITY OF

FEDERALISM’S CORE QUESTION 13

(William W. Buzbee ed., 2009)............................... 14, 15

Ronald A. Cass,

Fixing Deference: Delegation,

Discretion, and Deference under

Separated Powers,

17 NYU J. L. & LIBERTY 1 (2023) ................................. 6

S. Ct. R. 37.2.......................................................................... 1

Susan E. Dudley,

Milestones in the Evolution of the

Administrative State,

150 DAEDALUS 33 (2021) ................................................ 5

Tr. of Oral Arg.,

Learning Resources, Inc. v. Trump,

146 S. Ct. 628 (2026) (No. 24-1287) ............................. 18

Tr. of Oral Arg.,

Trump v. Barbara, No. 25-365

(U.S. argued Apr. 1, 2026) ............................................. 8

Variant Texts of the Plan Presented by

Alexander Hamilton to the Federal

Convention – Texts A-E, YALE L. SCH.,

https://tinyurl.com/428kk8su

(last accessed Apr. 7, 2026) .......................................... 11

Variant Texts of the Plan presented by

William Patterson – Texts A-C, YALE

L. SCH., https://tinyurl.com/y2teyhsj

(last accessed Apr. 7, 2026) .......................................... 11

XIV

Variant Texts of the Virginia Plan,

Presented by Edmund Randolph to the

Fed. Convention, May 29, 1787 – Texts

A-C, YALE L. SCH.,

https://tinyurl.com/3dzuew4k

(last accessed Apr. 7, 2026) .......................................... 11

William J. Novak,

The Administrative State in America,

in 1 THE MAX PLANCK HANDBOOKS IN

EUROPEAN PUBLIC LAW: THE

ADMINISTRATIVE STATE 98 (2017) ............................... 7

INTRODUCTION AND INTERESTS

OF AMICI CURIAE1

Far too often, Congress decides it doesn’t want to

make a tough decision and instead punts to another. This

case involves another such unfortunate case.

Here, Congress offloaded critical choices about our

nation’s markets to the Environmental Protection

Agency. In the American Innovation and Manufacturing

Act of 2020, Congress set a cap on hydrofluorocarbons. As

the multi-billion-dollar industry reduces its size, the Act

requires businesses to produce or consume HFCs through

“allowance[s].” 42 U.S.C. § 7675(b)(2). But instead of just

telling EPA how to allocate these newly scarce resources,

Congress left it to the agency to draft its own criteria for

98% of the allowances. So the substantive law appears not

in the United States Code but in the Federal Register.

And Congress can wash its hands of any responsibility for

whatever painful consequences might follow.

Congress harms our whole constitutional order when

it divests itself of legislative power like this. Amici States

in turn suffer real harms; they lose their ability to regulate

their own citizens in areas of traditional concern and shed

their signature character as “laboratories of democracy.”

But because Congress has both a proclivity and an

incentive to delegate its lawmaking power, this problem

will likely worsen over time. Only this Court can draw the

lines necessary to remedy these constitutional imbalances.

To be sure, this Court looked at the nondelegation

doctrine not too long ago. FCC v. Consumers’ Rsch., 606

U.S. 656 (2025). But the Court there focused on whether

Under Supreme Court Rule 37.2, amici timely notified counsel of

record of their intent to file this brief.

1

2

“tax statutes—and probably all revenue-raising

statutes—have to satisfy a special nondelegation rule.”

Id. at 673. Amici States aren’t asking for topic-based

exceptions to the rule. Rather, they are asking for a

tough, close reevaluation of the entire nondelegation

doctrine—and whether it’s working in any context. It’s

not.

So the time for another close look is now. In the AIM

Act, Congress has allowed EPA to partition national

markets all on its own, even though “the basic and

consequential tradeoffs involved in such a choice are ones

that Congress” typically makes. West Virginia v. EPA,

597 U.S. 697, 730 (2022). “If perchance Congress

possesses power to manage the [HFC] business within the

various states, authority to do so cannot be committed to

another.” United States v. Rock Royal Co-op., 307 U.S.

533, 382-83 (1939) (McReynolds & Butler, J.J.,

dissenting). And lower courts can’t supply the missing

standards by spelunking through legislative history, as

happened here. See App.16-18. Legislative history has no

place in the face of an unambiguous statute. Mohamad v.

Palestinian Auth., 566 U.S. 449, 458 (2012). This statute

is unambiguously silent.

The Petition asks whether the nondelegation doctrine

retains any independent force. If “intelligible principles”

are to mean anything, then they can’t mean vague

handwaving from Congress followed by on-the-fly

supplementation from agencies or courts. And if the

intelligible-principles test doesn’t foreclose even this

shoddy legislative work, then the Court should ditch it and

return to a truer understanding of the doctrine. The

Amici States thus ask the Court to grant the Petition and

provide a clear and robust nondelegation doctrine—

restoring the powers to their proper places.

3

SUMMARY OF ARGUMENT

I. The Framers purposefully separated lawmaking

authority between Congress and the States. Yet as the

administrative state grows, Congress offloads important

policy decisions to the President’s agencies. Despite

earlier Court intervention—and a history of consistent

separation of powers line-drawing—the Court’s

nondelegation doctrine has eroded into the all-buttoothless “intelligible principles” test.

II.

The present test conflicts with just about

everything in the Constitution. It finds no grounding in

the Constitution’s text, structure, convention history, and

the earliest legislative precedents. It also conflicts with

the sovereign lawmaking separation between Congress

and the States: stripping States of their signature

“laboratories of democracy” character. Unfortunately, no

other separation of powers principles can structurally

restore the proper lawmaking power balance.

III. Despite confusion in the lower courts, hope is not

lost. This Court can still draw on principles from the

Constitution’s text, early cases, and State examples to

reinvigorate the nondelegation doctrine. The Court

should act now to give Congress, States, agencies, and

lower courts the clarity they need. The AIM Act at least

offers the means to do that.

REASONS FOR GRANTING THE PETITION

I.

Congress Cedes Legislative Power Away With

No Meaningful Check.

A. The Framers envisioned a nation free from the

abuses that accompany concentrated power. See THE

DECLARATION OF INDEPENDENCE paras. 1-2 (U.S. 1776).

4

So they first identified the three essential government

powers: the power to make the law, the power to execute

it, and the power to construe its commands. THE

FEDERALIST NO. 47 (J. Madison); THE FEDERALIST NOS.

78, 80, 81 (A. Hamilton); Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 42 (1825). They then divided those powers

between three branches—Congress, the Executive, and

the Judiciary—to “counteract ambition.”

See THE

FEDERALIST NO. 51 (A. Hamilton or J. Madison); U.S.

CONST. arts. I, II, III; Philip B. Kurland, The

Constitution: The Framers’ Intent, the Present and the

Future, 32 ST. LOUIS UNIV. L. J. 17, 19 (1987).

As a further check on concentrated power, the

Framers “split the atom of sovereignty” between the

States and the federal government. Gamble v. United

States, 587 U.S. 678, 688 (2019). As dual sovereigns in this

system, the States “claim[] the powers inherent in

sovereignty.” Murphy v. NCAA, 584 U.S. 453, 470 (2018).

Among other things, they carry “the power[] of

legislation[] delegated to them by the[ir] State

Constitutions.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 387

(1798). So, like Congress, States have the power to make

laws “to establish justice, to promote the general welfare,

to secure the blessings of liberty; and to protect their

persons and property from violence.” Id. at 388.

The Framers thus expected that well-balanced

horizontal and vertical separation would keep power in

check. And “[t]his devotion to the separation of powers is,

in part, what supports [the Court’s] enduring conviction

that the Vesting Clauses are exclusive and that the branch

in which a power is vested may not give it up or otherwise

reallocate it.” Dep’t of Transp. v. Ass’n of Am. R.R., 575

U.S. 43, 74 (2015) (Thomas, J., concurring). Applying this

“exclusivity” conception, deciding who does what should

5

be relatively straightforward. Courts would need only to

ask whether a given power is legislative and, if so, whether

a statute deprives Congress of exclusive control over the

exercise of that power. Cf. Morrison v. Olson, 487 U.S.

654, 705 (1988) (Scalia, J., dissenting) (applying the

Executive Vesting Clause).

B. Since the founding, the federal government has

undergone a structural renovation. Meanwhile, an equal

balance among the branches (and between the States and

federal government) has become a distant memory.

The “size and scope of the [federal] administrative

state ha[s] grown over the past century.” Susan E.

Dudley, Milestones in the Evolution of the

Administrative State, 150 DAEDALUS 33, 33 (2021).

Largely a product of FDR’s New Deal era, the President’s

administrative agencies ballooned from George

Washington’s original three to now well over 400—

commanding more than two million civilian employees.

Jerry L. Mashaw, Recovering American Administrative

Law: Federalist Foundations, 1787-1801, 115 YALE L.J.

1256, 1277 (2006); Federal Register: Agencies, NAT’L

ARCHIVES, https://tinyurl.com/48yff9n6 (last accessed

Apr. 7, 2026); Executive Branch Civilian Employment

Since

1940,

OPM,

https://tinyurl.com/

46jskbfh (last accessed Apr. 7, 2026). Contrast that

Leviathan with the size of the legislative and judicial

branches: their employees combined numbered only

about 75,000 in 2020. GPO, FY 2020 BUDGET OF THE U.S.

GOVERNMENT 73 (2020), https://tinyurl.com/dr97ej3w.

The administrative state has become so pronounced that

some even refer to it as a “fourth branch” of government.

Peter L. Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch, 84 COLUM.

L. REV. 573, 578 (1984) (cleaned up).

6

Unprecedented executive expansion came with

opportunities and temptations.

Initially, Congress

broadened its use of executive agencies “to tackle the new

and vexing problems that were arising” during the New

Deal era. See Daniel B. Rodriguez & Barry R. Weingast,

Engineering the Modern Administrative State: Political

Accommodation and Legal Strategy in the New Deal Era,

46 BYU L. REV. 147, 160 (2021). But seeing an

opportunity to offload political accountability, Congress

instituted regulatory regimes with broad and vague

authorizations, pawning off important policy choices to

executive agencies.

See Ronald A. Cass, Fixing

Deference: Delegation, Discretion, and Deference under

Separated Powers, 17 NYU J. L. & LIBERTY 1, 24 (2023);

see also generally R. Kent Weaver, The Politics of Blame

Avoidance, 6 J. PUB. POL’Y 371 (1986). Indeed, Congress

has “persistent incentives for delegation to agencies,

because it is often easier to serve [its] interests through

shaping administration than by passing legislation.”

Neomi Rao, Administrative Collusion: How Delegation

Diminishes the Collective Congress, 90 NYU L. REV.

1463, 1463 (2015).

At the same time, administrative agencies “carv[ed]

out space for presidential control between the lines of

statutory text,” Ashraf Ahmed, et al., The Making of

Presidential Administration, 137 HARV. L. REV. 2131,

2143 (2024), to bring within their regulatory ambit “vast

swaths of American life,” West Virginia, 597 U.S. at 744

(Gorsuch, J., concurring). As of 2024, the President’s

agencies had promulgated “roughly 200,000 pages of

agency-generated rules—approximately nine to ten times

as many pages as the congressionally-passed laws—that

are enforced through threat of criminal punishment, civil

penalties, denial of valuable privileges, loss of benefits,

and damaging publicity.” Ronald A. Cass, Deference to

7

Agency Rule Interpretations: Problems of Expanding

Constitutionally Questionable Authority in the

Administrative State, 19 THE FEDERALIST SOC’Y REV. 54,

58 (2024). This expansion executed a “hidden revolution”

of constitutional magnitude. See William J. Novak, The

Administrative State in America, in 1 THE MAX PLANCK

HANDBOOKS IN EUROPEAN PUBLIC LAW: THE

ADMINISTRATIVE STATE 98, 100 (2017).

C. When the President and Congress have tried to

swap functions, this Court has often acted to keep the

powers separate. When the President tried to exert

“emergency” powers to act without congressional

blessing, for instance, the Court blocked the power grab.

See generally Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952). When the President wanted to shield

himself from criminal subpoenas, the Court enforced what

Congress required. See generally United States v. Nixon,

418 U.S. 683 (1974). The Court warded off the unchecked

legislative veto, see generally INS v. Chadha, 462 U.S. 919

(1983), and deemed the line-item veto unconstitutional, see

generally Clinton v. City of New York, 524 U.S. 417 (1998).

And it emphasized divided powers when Congress tried to

criminalize executive actions. See generally Trump v.

United States, 603 U.S. 593 (2024). So the Court

repeatedly and emphatically draws the separating line

between the powers.

For a time, the Court was equally vigilant in policing

efforts to delegate the lawmaking power to the executive.

In Panama Refining Company v. Ryan, the Court found

that Congress could not delegate legislative authority to

the President to regulate petroleum transport against the

States. 293 U.S. 388, 415, 421, 430 (1935). Again, in A.L.A.

Schechter Poultry Corporation v. United States, a

unanimous Court held that Congress supplied no

8

standards for any trade, industry, or activity to guide the

President leaving his judgment “virtually unfettered.”

295 U.S. 495, 541-42 (1935). Then, in Carter v. Carter Coal

Company, the Court shunned legislative delegation of

labor hours to private industry parties. 298 U.S. 238, 31012 (1936). So, the Court has enforced the nondelegation

doctrine more than once. See David Schoenbrod, Consent

of the Governed: A Constitutional Norm that the Court

Should Substantially Enforce, 43 HARV. J.L. & PUB.

POL’Y 213, 224-35 (2020) (collecting cases).

But things soon came apart. Despite this Court’s

traditional adherence to separation-of-powers principles,

the nondelegation doctrine has atrophied from its oncemuscular form in Panama. Under its current form,

Congress must set out little more than general policies in

a statute. See Consumers’ Rsch., 606 U.S. at 673. This

looser standard was said to be justified because of our

“increasingly complex society, replete with ever changing

and more technical problems.” Mistretta v. United States,

488 U.S. 361, 372 (1989). But while “it’s a new world,” [i]t’s

the same Constitution.” Tr. of Oral Arg. at 34, Trump v.

Barbara, No. 25-365 (U.S. argued Apr. 1, 2026) (Roberts,

C.J.). And less concern was shown for the principles

underlying the Vesting Clauses, which should impose

“strict limits.” Ortiz v. United States, 585 U.S. 427, 476

(2018) (Alito, J., dissenting).

The Constitution has thus become a frail guardian

against delegation. The “intelligible principle” standard,

first articulated in J.W. Hampton, Jr. & Co. v. United

States, 276 U.S. 394 (1928), may have started with the best

of intentions; it sought to resolve a “seeming dilemma”

that Congress need decide everything under a strict

nondelegation doctrine.

David Schoenbrod, The

Delegation Doctrine: Could the Court Give it Substance?,

9

83 MICH. L. REV. 1223, 1224 (1985). But the amorphous

test “has allowed the interpretation of the [non]delegation

doctrine to swing like a pendulum with the changing

politics of the Court and the times.” Id. Under the

“intelligible principles” test, the Court has upheld “utterly

vacuous statutes,” “simply recit[ing]” the Court’s “past

holdings and wearily mov[ing] on.” Gary S. Lawson, The

Rise and Rise of the Administrative State, 107 HARV. L.

REV. 1231, 1240 (1994).

“[I]t is the demise of [the nondelegation] doctrine that

has allowed the Congress both to augment and to

fragment the executive branch by establishing federal

agencies within the executive tasked with making policy

pursuant to broad mandates.” Douglas H. Ginsburg &

Steven Menashi, Nondelegation and the Unitary

Executive, 12 U. PA. J. CONST. L. 251, 254 (2010). But “[i]f

the aim of the Article I Vesting Clause … is to ensure that

Congress wields the legislative power that the

Constitution grants it, then delegations of unilateral

authority to the President are particularly concerning.”

David B. Froomkin, The Nondelegation Doctrine and the

Structure of the Executive, 41 YALE J. ON REG. 60, 63

(2024) (footnotes omitted). In other words, the test has

tended to encourage the precise opposite of what the

Framers intended in setting out the respective roles of the

three branches.

II.

The “Intelligible Principles” Test Must Go.

A. The “intelligible principles” test not only eludes a

definitive standard: it finds no grounding in the

Constitution’s text, structure, convention history, nor

early legislative precedent. The test therefore “does not

adequately reinforce the Constitution’s allocation of

10

legislative power.” Ass’n of Am. R.R., 575 U.S. at 77

(Thomas, J., concurring).

First, the test conflicts with the Constitution’s text.

The first line of the first section of the first article of the

Constitution vests “[a]ll legislative Powers” “in a

Congress of the United States, which shall consist of a

Senate and House of Representatives.” U.S. CONST. art.

I, § 1. And “[w]hat is a legislative power, but a power of

making laws?” THE FEDERALIST NO. 33 (A. Hamilton)

(citation

modified);

see

also

M.J.C.

VILE,

CONSTITUTIONALISM AND THE SEPARATION OF POWERS

28-29 (2d ed. 1998) (1967). Nowhere does the Constitution

say that the legislative powers are committed to the

President’s agencies or that Congress need provide only

an “intelligible principle” to the agency. Instead, the “true

nature” of the lawmaking power commits to Congress the

responsibility to “pass all laws” “necessary and proper”

“for the execution of that power.” THE FEDERALIST NO.

33 (A. Hamilton) (cleaned up); U.S. CONST. art. I, § 8, cl.

18. All means all.

Second, the test is inconsistent with the Constitution’s

broader structure. Instead of suggesting delegated

authority to agencies, the powers are separated between

three institutions in the Constitution. U.S. CONST. arts. I,

II, III. The executive power is vested in the President,

the legislative powers in Congress, and the judicial power

in the Court. Id. The way the Constitution commands

these institutions to interact also demands separation.

For example, the legislative process of bicameralism and

presentment require separate legislative bodies within

Congress and an isolated President. U.S. CONST. art. I,

§ 7. And the Constitution names only three sources of law:

the Constitution, laws, and treaties, each of which

11

Congress—not agencies—holds the authority to make

and ratify. U.S. CONST. art. VI, cl. 2.

Third, the Framers designed the Constitution to

confer legislative powers exclusively on Congress in the

Constitutional Convention—an aim that an ambiguous

nondelegation doctrine undermines.

Each of the

constitutional plans proposed vesting the legislative

power in a national legislature and no other body.

Compare Variant Texts of the Plan Presented by

Alexander Hamilton to the Federal Convention – Texts

A-E, YALE L. SCH., https://tinyurl.com/428kk8su (last

accessed Apr. 7, 2026); with Variant Texts of the Plan

presented by William Patterson – Texts A-C, YALE L.

SCH., https://tinyurl.com/y2teyhsj (last accessed Apr. 7,

2026); and Variant Texts of the Virginia Plan, Presented

by Edmund Randolph to the Fed. Convention, May 29,

1787 – Texts A-C, YALE L. SCH., https://tinyurl.com/

3dzuew4k (last accessed Apr. 7, 2026); and The Plan of

Charles Pinckney (South Carolina), Presented to the

Federal Convention, YALE L. SCH., https://tinyurl.com/

ym6tm3b9 (last accessed Apr. 7, 2026).

Statements by the members of the convention mirror

that design. In rejecting the idea that the judicial branch

be empowered to revise Congress’s laws, representatives

argued that the branches’ functions “must [be]

separate”—“Judges must interpret the Laws they ought

not to be legislators.” See, e.g., 1 THE RECORDS OF THE

FEDERAL CONVENTION OF 1787 108 (Max Farrand ed.,

1911) (June 4, 1787, Rufus King). They saw that “the

power of making [law] ought to be kept distinct from that

of expounding[] the laws.” 2 THE RECORDS OF THE

FEDERAL CONVENTION OF 1787 75 (Max Farrand ed.,

1911) (July 21, 1787, James Madison); see also Aaron

12

Gordon, Nondelegation, 12 NYU J.L. & LIBERTY 718, 74447 (2019).

Fourth, the first Congress guarded its legislative

prerogatives on important topics. The first several

congressional debates and Acts show that, despite claims

to the contrary, e.g., Julian Davis Mortenson & Nicholas

Bagley, Delegation at the Founding, 121 COLUM. L. REV.

277 (2021), “Congress could not, and did not, delegate

discretion over ‘important subjects’ to the Executive,”

Ilan Wurman, Nondelegation at the Founding, 130 YALE

L.J. 1490 (2021). For example, in debating post-road

establishment, Congress rejected a proposal to delegate

this determination to the President. Gordon, supra, at

744-47. “Generally speaking, the acts of early Congresses

were very detailed and left little to administrators.”

Aaron Gordon, Nondelegation Misinformation: A Reply

to the Skeptics, 75 BAYLOR L. REV. 152, 158 (2023). So,

long “[b]efore the 1930s, federal statutes granting

authority to the executive were comparatively modest and

usually easily upheld.” Gundy v. United States, 588 U.S.

128, 160 (2019) (Gorsuch, J., dissenting).

The founding-era evidence thus points to a robust

nondelegation doctrine—much stronger than the present

“intelligible

principle”

test—because

Congress’s

legislative power is exclusive to its institution.

B. Accompanying the Constitution’s three-branch

design is an equally important structural check on

concentrated lawmaking power—separation between the

States and the national government. States possess a

unique role in our constitutional order that Congress must

respect.

When Congress impermissibly delegates

lawmaking power “it also risks intruding on powers

reserved to the States.” See West Virginia, 597 U.S. at

744 (Gorsuch, J., concurring).

13

The Constitution created “a legal system

unprecedented in form and design, establishing two

orders of government, each with its own set of mutual

rights and obligations to the people who sustain it and are

governed by it.” Printz v. United States, 521 U.S. 898, 920

(1997) (cleaned up). In this system, the Framers split

lawmaking power unequally between the States and the

national government. State legislative authority is farreaching: a state legislature “may enjoin, permit, forbid,

and punish; they may declare new crimes; and establish

rules of conduct for all its citizens in future cases,” “they

may [even] command what is right, and prohibit what is

wrong.” Calder, 3 U.S. (3 Dall.) at 388. All this to

“promote the peace, comfort, convenience, and

prosperity” of the States’ citizens. Escanaba & Lake

Mich. Transp. Co. v. City of Chi., 107 U.S. 678, 683 (1883).

On the other hand, Congress’s lawmaking power is

limited. Congress may legislate on things like taxes,

commerce, immigration, currency, post offices, patents,

etc. U.S. CONST. art. I, § 8. But “[a]ll powers not

delegated to [the federal government], or inhibited to the

states, are reserved to the states or to the people.”

Briscoe v. Bank of Commw. of Ky., 36 U.S. (11 Pet.) 257,

317 (1837); see also U.S. CONST. amend. X.

Lawmaking at the federal level is best left to Congress

because it has an interest in protecting the “integrity,

dignity, and residual sovereignty of the States.” Bond v.

United States, 564 U.S. 211, 221 (2011). Each chamber of

Congress is an assembly of representatives from the

States. U.S. CONST. art. I, § 2. And these representatives

are in turn beholden to local “[v]oters who like or dislike

the effects of [a] regulation [and] know who to credit or

blame.” Murphy, 584 U.S. at 473. Wide representation

thus “connect[s] the members of Congress with the

people, ensuring that various interests of individuals and

14

regions [are] part of the deliberations within Congress.”

Neomi Rao, Why Congress Matters: The Collective

Congress in the Structural Constitution, 70 FL. L. REV. 1,

27 (2018); see also Jonathan S. Gould, The Law of

Legislative Representation, 107 VA. L. REV. 765, 779

(2021) (“[S]ingle-member districts promote[] legislative

responsiveness to constituents, local civic and political

organizations, and local governments.”).

Other institutional characteristics tie Congress to the

States. For instance, the States hold an integral role in

federal elections. See Smiley v. Holm, 285 U.S. 355, 366

(1932). States apply political party pressure, see Jessica

Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV.

1077, 1130 (2014), and lobby Congress as well, see

Comment, The Lesson of Lopez: The Political Dynamics

of Federalism’s Political Safeguards, 119 HARV. L. REV.

609, 621-22 (2005). So, “the role of the [S]tates in the

composition and selection of the central government,”

among other things, “is intrinsically well adapted to …

restraining new intrusions by the center on the domain of

the [S]tates.”

Herbert Wechsler, The Political

Safeguards of Federalism: The Role of the States in the

Composition and Selection of the National Government,

54 COLUM. L. REV. 543, 558 (1954).

Administrative agencies, on the other hand, are illsuited to protecting State interests. “Agency officials are

not directly accountable to voters,” they are “focused on

federal needs and powers rather than state interests,” and

practically speaking, “agencies are not set up to evaluate

and protect state regulatory powers.” Robert R.M.

Verchick & Nina Mendelson, Preemption and Theories of

Federalism, in PREEMPTION CHOICE: THE THEORY, LAW,

AND REALITY OF FEDERALISM’S CORE QUESTION 13, 26

(William W. Buzbee ed., 2009). Agencies can “preempt

15

nearly any sort of state regulation simply by referencing

a subordinate federal purpose that is somehow impeded

by state law.” Id. So, “[m]embers of Congress …

blatantly evade the political safeguards of federalism and

electoral accountability by delegating authority to

agencies.” Scott A. Keller, How Courts Can Protect State

Autonomy From Federal Administrative Encroachment,

82 S. CAL. L. REV. 45, 58 (2008).

Congress’s impermissible delegations then work as a

“negative” on the States’ right to regulate their own

citizens, “consolidate[ing]” the States into one entity. 2

THE RECORDS OF THE FEDERAL CONVENTION OF 1787,

supra, at 28 (July 17, 1787, James Madison). That

consolidation “disgust[s] all the States” and our dual

system of sovereignty—that’s why the Framers voted

against it in the beginning. See id. When States are

unlawfully confined to regulate according to the whims of

agency administrators and private delegates, States lose

their signature character as “laboratories of democracy.”

DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY:

HOW CONGRESS ABUSES THE PEOPLE THROUGH

DELEGATION 10 (1993); see also Alexandra Klass, State

Innovation and Preemption: Lessons from State Climate

Change Efforts, 41 LOY. L.A. L. REV. 1653, 1709-12 (2008).

So an amorphous “intelligible principles” standard

strips States of their power to hold lawmakers

accountable and robs them of their experimental

character, too.

C. Some believe the nondelegation doctrine’s interests

are already served through the major questions doctrine

and the “best reading” standard in Loper Bright. See

Consumers’ Rsch., 606 U.S. at 705 (Kavanaugh, J.,

concurring); Brian Chen & Samuel Estreicher, The New

Nondelegation, 102 TEX. L. REV. 539, 576 (2024). Though

16

these principles represent steps toward a healthier

separation of powers, a close analysis reveals how they fall

short of the structural protections offered by a robust

nondelegation doctrine.

Begin with the major questions doctrine. The major

questions doctrine asks whether Congress clearly

authorized an agency to use the power the agency claims.

See West Virginia, 597 U.S. at 723. It “is about preventing

agencies from exploiting Congress’s delegation of power.”

Anita S. Krishnakumar, What the New Major Questions

Doctrine is Not, 92 G.W. L. REV. 1117, 1124 (2024); see

also Samuel Joyce, Testing the Major Questions Doctrine,

43 STAN. ENV’T L. J. 52, 93 (2024). So, it “explicitly allows

broad or significant delegations of power to administrative

agencies–-so long as Congress clearly and explicitly

authorizes the delegation.” Krishnakumar, supra, at

1124. For example, in Biden v. Nebraska, the Department

of Education sought to forgive student loan debt under the

COVID-19-related HEROES Act. 600 U.S. 477 (2023).

The Department relied on emergency-time “waiver”

language to do so. Id. at 488. The relevant question was

only whether that language gave the Department

authority it claimed. Id. at 501.

The nondelegation doctrine is different. “[T]he

nondelegation doctrine is about restricting Congress’s

ability to give away too much power.” Krishnakumar,

supra, at 1124. For instance, in this case, no one contests

that Congress delegated broadly to EPA the authority to

determine how HFC allowances are assigned. The

question is whether Congress can legitimately allow EPA

to make this choice. Put differently, this case is not one

where a parent hires a babysitter to watch her young

children over the weekend and gives the babysitter a

credit card, saying, “Make sure the kids have fun.” See

17

Biden, 600 U.S. at 513 (Barrett, J., concurring). It’s more

like giving the kids to the babysitter for a year—an

improper, wholesale delegation of the parental function.

Similarly, the Court’s recognition that judges—not

agencies—determine the meaning of statutes does not

address the structural separation of powers issues at play.

Judges can ascertain the “best reading” of a statute to be

that Congress delegated lawmaking authority. See Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 394-95 (2024).

But the Court must still review the statute under the APA

to “effectuate the will of Congress subject to

constitutional limits.” Id. (emphasis added). If no

independent delegation limit arises from the

nondelegation doctrine, then no nondelegation

enforcement would arise under Loper Bright. Again, this

is no answer to whether Congress can delegate its

lawmaking power to the agency in the first place. And

even worse, courts might be tempted to do what the lower

court did here, reading in intelligible standards in the

guise of construing the statute. See A.J. Kritikos,

Resuscitating the Non-Delegation Doctrine: A

Compromise and an Experiment, 82 MO. L. REV. 441, 456

(2017) (describing cases in which “the non-delegation

doctrine was wholly defanged” in part because “the Court

invented restrictions” on agency power that were not in

the statute).

Just as neither of the doctrines here touch on

structural separation of powers issues, they fail to address

the problem of power reclamation. Under any of these

doctrines, Congress can delegate lawmaking power. But

none provide a mechanism—or even a reason—Congress

can reclaim power already delegated. See Joseph

Diedrich, Delegation Running Ratchet, 104 TEX. L. REV.

ONLINE 205, 220 (2026). Without a robust nondelegation

18

doctrine, Congress’s delegations act as a “one-way ratchet

toward the gradual but continual accretion of power in the

executive branch.” Tr. of Oral Arg. at 72, 74, Learning

Resources, Inc. v. Trump, 146 S. Ct. 628 (2026) (No. 241287) (Gorsuch, J.).

At bottom, “[s]tate sovereign interests … are more

properly protected by procedural safeguards inherent in

the structure of the federal system than by judicially

created limitations on federal power.” Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985).

Those procedural safeguards can’t be text on a cold page

with nothing more.

III.

The Court Can and Should Strengthen the

Nondelegation Doctrine.

A. There’s still hope for a more constitutional,

workable, and meaningful nondelegation doctrine. Most

of the Court has signaled it believes as much. Gundy v.

United States, 588 U.S. 128, 164-65 (2019) (Gorsuch, J.,

dissenting, joined by Roberts, C.J., and Thomas, J.); id. at

148-49 (Alito, J., concurring); see also Paul v. United

States, 589 U.S. 1087 (2019) (Kavanaugh, J., statement

respecting denial of cert.). Perhaps the Court is waiting

for the right opportunity to restore meat to the

nondelegation doctrine’s frail frame. See Learning

Resources, Inc., 146 S. Ct. at 668 n.6 (2026) (Gorsuch, J.,

concurring); Consumers’ Rsch., 606 U.S. at 662, 698

(Kavanaugh, J., concurring and Roberts, C.J., joining the

majority). If so, the wait should be over.

This case is ideal because the AIM Act “likely fail[s]

even [J.W.’s] forgiving test.” Amy C. Barrett, Suspension

and Delegation, 99 CORNELL L. REV. 251, 320 (2014).

Congress’s delegation to EPA gives no standard on how

to allocate multi-billion-dollar HFC allowances that shape

19

the contours of an entire industry. The AIM Act gives no

guidance to the agency; no general policy to follow; nor

ascertainable boundaries for the Courts and the public to

know whether EPA is allocating the allowances in line

with Congress’s will. See Pet.16-21. At minimum, then,

the lower court’s judgment should be reversed.

If the Court decides this case, it could provide muchneeded clarity to the lower courts. It’s not just that lower

courts have been confused about administering precious

resources like the HFC allowances in this case. Lower

courts have also been confused about how to apply the

“intelligible principle” test in everything from SEC

actions, see SEC v. Jarkesy, 603 U.S. 109 (2024) (not

reaching the nondelegation issue), to OSHA safety

standards, see Allstates Refractory Contractors, LLC v.

Su, 144 S. Ct. 2490 (2024) (denying cert.), to horseracing

activities, see, e.g., Oklahoma v. United States, 144 S. Ct.

2679 (2024) (denying cert.). Lower courts even struggle to

apply the doctrine when it comes to criminal sanctions on

public lands. See Pet. for Cert., Pheasant v. United

States, No. 25-6911 (U.S. filed Feb. 20, 2026). At an

absolute minimum, the Petition provides a welcome

chance to remind these courts that “intelligible principles”

are not imaginary ones and must apply across these cases.

B. But really, this case gives the Court everything it

needs to clarify and strengthen the nondelegation

doctrine in a way that’s more consistent with the

Constitution and State interests.

First principles are key here. “It will not be contended

that Congress can delegate to the Courts [or to anyone

else] powers which are strictly and exclusively legislative.”

Wayman, 23 U.S. at 42. However, “Congress may

certainly delegate to others, powers which the legislature

may rightfully exercise itself” but which are not

20

“legislative powers.” Id. at 43. Among those powers is the

rulemaking power. “The rulemaking power … is the

power to adopt regulations to carry into effect the will of

Congress as expressed by the statute.” Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 213-14 (1976). But while “[t]he

line has not been exactly drawn which separates”

lawmaking from rulemaking, several things confirm that

Congress overstepped in the AIM Act. Wayman, 23 U.S.

at 43.

First, rulemaking becomes lawmaking when Congress

allows agencies to regulate, in some “real sense,”

Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892),

“important … interest[s],” Wayman, 23 U.S. at 43.

Impermissible rulemaking involves “general provisions,”

or “primary standard[s].” Id.; see also Buttfield v.

Stranahan, 192 U.S. 470, 96 (1904). The broader the

provision, the more suspect the rulemaking. The AIM Act

regulates an important interest in a real sense: setting all

the terms for how—and even if—a business can operate

in a multi-billion-dollar industry.

Second, Congress must set a “policy,” “a certain

course of procedure[,] and certain rules of decision” for

the agency to perform its functions. Panama, 293 U.S. at

432, 430 (quoting Wichita R. & Light Co. v. Pub. Utils.

Comm’n of the State of Kansas, 260 U.S. 48, 59 (1922)).

Broad declarations of policy are insufficient. Id. at 418. If

Congress sets inadequate policies, procedures, or rules,

the purported rulemaking is lawmaking. Here, Congress

gave EPA no policies, procedures, or rules on how to

allocate 98% of the allowances. And the lower court

assumed that the policies underlying an earlier statute

could be penciled into this one.

Third, rulemaking involves fact-finding. Marshall

Field & Co., 143 U.S. at 693; see also Panama, 293 U.S. at

21

415 (considering “whether the Congress has required any

finding by the President”). If rulemaking does not involve

fact-finding, it is more likely lawmaking. EPA does not

find any facts to allocate allowances under the AIM Act,

except as it deems them legally relevant. EPA lays out

the law on allowances, then declares whether the company

meets the criteria for the allowance.

Fourth, the Congressional authorization must

comport with traditional “precedents in legislation.”

Marshall Field & Co., 143 U.S. at 683-90. If close

analogues to this kind of authorization exist historically, it

would more likely be rulemaking. But they’re absent

here. Congress knows how to make cap-and-trade

programs with sufficient detail to avoid nondelegation

concerns in other multi-billion-dollar industries. For

example, in the Clean Air Act, Congress named about 110

individual power plants and then their relevant generators

and allocated specific allowances for SO2 emissions for

Phase I. 42 U.S.C. § 7651c(e) (Table A). Congress further

dictated detailed instructions on allowance calculations in

Phase II. See id. § 7651d. The AIM Act, by contrast, is

anomalous in how much detail it lacks.

Beyond lessons gleaned from this Court’s

jurisprudence, “[w]e all can learn from the states’

experiments.”

Adam J. White, Learning from

Laboratories of Liberty, 46 HARV. J.L. & PUB. POL’Y 303,

303 (2023).

States often consider nondelegation

challenges to state statutes. See Jason Iuliano & Keith E.

Whittington, The Nondelegation Doctrine: Alive and

Well, 93 NOTRE DAME L. REV. 619, 636-43 (2017). They

are well-positioned to advise the Court on what has

worked within their “laboratories of democracy.”

Benjamin Silver, Nondelegation in the States, 75

VANDERBILT L. REV. 1211, 1260-62 (2022). The Court

22

might consider, for example, a Florida nondelegation

standard: the existence of “legislative delineation of

priorities among competing areas and resources.” Joseph

Postell & Randolph J. May, The Myth of the State

Nondelegation Doctrines, 74 ADMIN. L. REV. 263, 293

(2022) (quoting Askew v. Cross Key Waterways, 372 So. 2d

913 (Fla. 1978)).

At bottom, federal courts have seemed unwilling to

address delegation problems because of a fear that

Congress might not be up to the task of more legislating.

But evidence shows otherwise. Congress provided

detailed allowance rules as to many scarce resource

allocation scenarios like radio-wave spectrum auctions, 47

U.S.C. § 309(j); peanut, tobacco, and sugar quotas, 7

U.S.C. §§ 1311–14 (repealed), 1357–1359a (repealed),

1359aa-1359jj; airport landing slots, 49 U.S.C. §§ 4171441718, and water, 43 U.S.C. §§ 617-617u. Yet it provided

no legislative priorities in allocating allowances in the AIM

Act. It’s not too much to ask Congress to return to the

drawing board and bring with it the same attention to the

task that it has applied in these and other contexts.

***

“[E]ven those who do not relish the prospect of

regular judicial enforcement of the unconstitutional

delegation doctrine might well support the Court’s

making an example of one—just one—of the many

enactments that appear to violate the principle.” Antonin

Scalia, A Note on the Benzene Case, 4 AEI J. ON GOV’T &

SOC’Y 25, 28 (1980). The AIM Act’s standardless, marketshifting delegation provides a clear shot at that.

CONCLUSION

The Court should grant the petition.

23

Respectfully submitted,

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25306

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

Matthew K. Niu

Caldwell Fellow

Counsel for Amicus Curiae State of West Virginia

24

LEGAL REPRESENTATIVES OF THE STATES

STEVE MARSHALL

Attorney General

State of Alabama

KRIS KOBACH

Attorney General

State of Kansas

STEPHEN J. COX

Attorney General

State of Alaska

LIZ MURRILL

Attorney General

State of Louisiana

TIM GRIFFIN

Attorney General

State of Arkansas

LYNN FITCH

Attorney General

State of Mississippi

CHRIS CARR

Attorney General

State of Georgia

AUSTIN KNUDSEN

Attorney General

State of Montana

RAÚL LABRADOR

Attorney General

State of Idaho

MICHAEL T. HILGERS

Attorney General

State of Nebraska

THEODORE E. ROKITA

Attorney General

State of Indiana

DREW WRIGLEY

Attorney General

State of North Dakota

BRENNA BIRD

Attorney General

State of Iowa

DAVE YOST

Attorney General

State of Ohio

25

GENTNER DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

MARTY JACKLEY

Attorney General

State of South Dakota

JONATHAN SKRMETTI

Attorney General &

Reporter

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

DEREK BROWN

Attorney General

State of Utah