Thomas A. Berry, Brent Skorup, and Alexander Xenos
The Supreme Court has long recognized a “nondelegation doctrine,” which holds that Congress must provide executive agencies with an “intelligible principle” to govern the exercise of delegated authority. During the Second World War, however, the doctrine entered a period of dormancy, as wartime decisions deferential to the political branches truncated its development. Congress has since avoided difficult policy choices by granting broad authority to agencies—undermining the separation of powers and diminishing individual liberty. The Court now has a chance to revive and clarify the doctrine in a case called RMS v. EPA.
RMS, which does business as Choice Refrigerants, produces refrigerant blends for a multibillion-dollar domestic market. In 2020, Congress enacted the American Innovation and Manufacturing Act (“AIM Act”), mandating an 85 percent reduction in certain refrigerants through a cap-and-trade program administered by the EPA. To implement the phasedown, the Act requires the EPA to allocate production-and-consumption “allowances”—without which no person may lawfully produce or consume these refrigerants. Yet Congress provided no guidance on how EPA should distribute roughly 98 percent of those allowances.
Choice challenged this arrangement as an unconstitutional delegation of legislative power. The DC Circuit rejected that challenge, and Choice has petitioned the Supreme Court for review. Cato has now filed an amicus brief supporting Choice and urging the Court to grant the petition.
Our brief argues that this is a straightforward nondelegation case. Article I vests legislative power in Congress, and Congress cannot evade that responsibility by giving EPA unbounded discretion to choose which firms may continue participating in a major industry. The Constitution requires Congress to make the hard policy choices itself. Under the AIM Act, however, EPA can pick winners and losers without any intelligible principle from Congress to constrain its choices.
Our brief also explains why the DC Circuit erred. Rather than acknowledge that Congress failed to supply a limiting principle, the court attempted to save the statute by importing one from legislative history and a Clean Air Act provision that the AIM Act never references or incorporates. But the Constitution requires Congress—not an Article III court concocting a legislative judgment Congress never made—to cabin agency discretion. Allowing courts to perform that function does not solve the separation-of-powers problem; it compounds it.
Finally, our brief identifies an important rule-of-law problem created by the decision below. When Congress leaves the law this open-ended, the operative rules are neither fixed nor predictable. A company like Choice Refrigerants can invest millions of dollars developing products, building market share, and planning for the future—only to find that a change in administration, or even a change in EPA leadership, has wiped out its market position because the agency chose to fill the statutory void differently.
We urge the Court to grant the petition and make clear that Congress may not abdicate its legislative power.
