Two conservative judges just threatened to corrupt the entire civil service system.
is that the non-delegation rule it lays down is untethered from the relevant precedents and would open up an entirely new front in non-delegation challenges. Previous non-delegation cases didn’t involve anything like an agency’s choice to proceed through ordinary courts or its own tribunals. Rather, these cases involved broad grants of substantive power, such as to define “unfair methods of competition,” without adequate procedural protection.
That’s an unprecedent proposition. Congress has given many agencies power to combine administrative and judicial adjudication or choose among them as they see fit, including the Consumer Financial Protection Bureau, the Federal Trade Commission, Environmental Protection Agency, and the National Labor Relations Board. The 5Circuit’s novel non-delegation ruling, if adopted by the Supreme Court, would thus place significant government functions in constitutional peril.
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