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Of the many legal trends influencing tax law, arguably none could prove more significant than the growing importance of constitutional and administrative law principles limiting executive power.
In June 2024, the U.S. Supreme Court held in Loper Bright Enterprises v. Raimondo that judges, not agencies, must interpret ambiguous laws, and they must do so using “all relevant interpretive tools.”1 Since Loper Bright, two interpretive tools in particular, have featured prominently in cases before the Supreme Court— the nondelegation doctrine and the major questions doctrine. Both doctrines purport to limit the authority of executive branch actors and could have significant implications for tax law.
The Nondelegation Doctrine
The nondelegation doctrine is a legal principle that prevents Congress from delegating its constitutionally vested legislative powers to non-legislative branches.
For the past century, nondelegation cases have turned on the “intelligible principle” standard, which allows Congress to delegate lawmaking authority consistent with the Constitution so long as it “lay[s] down by legislative act an intelligible principle to which the person or body authorized... is directed to conform.”2 Today, the standard requires Congress to make clear in its statutory language both “the general policy” the recipient of its delegated authority must pursue and “the boundaries” of such authority.3 Ultimately, Congress's guidance must provide sufficient standards to enable both “the courts and the public [to] ascertain whether the [recipient]” has followed Congress's statutory directives.4
In 1935, the Supreme Court struck down two congressional delegations under the intelligible principle standard.5 Since that year, however, the Court has taken a deferential approach in nondelegation cases and has upheld statutes authorizing, for example, the War Department to define military contractors' “excessive profits” for purposes of excess profits taxes,6 the Attorney General to temporarily schedule drugs “as necessary to avoid an imminent hazard to the public safety,”7 and the Environmental Protection Agency to set air quality standards at levels “requisite to protect the public health.”8 In all of these cases (and many others), Congress' grants of authority were upheld because Congress provided an “intelligible principle” to guide non-legislative parties' actions.
The intelligible principle standard remains applicable today, but many believe it is too deferential and lacks punch.9 Despite these concerns, recent developments suggest the nondelegation doctrine could be applied more often and with less deference in the future. In Loper Bright, the majority recognized that Congress may “confer discretionary authority on agencies... subject to constitutional limits,”10 possibly signaling to lower courts that constitutional principles such as the nondelegation doctrine should be applied more freely. And, although the Court recently affirmed its deferential approach in nondelegation cases,11 several justices appear inclined to apply the nondelegation doctrine with more bite in the future.12
Major Questions Doctrine
Like the nondelegation doctrine, in specific contexts, the major questions doctrine13 prevents agencies from exercising authority purportedly delegated from Congress. The doctrine allows agencies to issue regulations to clarify certain statutory ambiguities,14 but not when the ambiguities concern “[questions] of deep ‘economic and political significance' that [are] central to [a] statutory scheme.”15
The major questions doctrine was first formally announced in West Virginia v. EPA16 in 2022, but several earlier cases appear to turn on its basic premise.17 Most recently, in FCC v. Consumers' Research, both Justice Kavanaugh (concurring) and Justice Gorsuch (dissenting) expressly acknowledged the major questions doctrine as an important constraint on executive power.18 Justice Kavanaugh has advocated for a “nondelegation principle for major questions,”19 and Justice Gorsuch acknowledges that the major questions doctrine helps prevent Congress from “divest[ing] itself of legislative power,”20 so for at least a portion of the Court, the major questions doctrine could serve as a backstop to cabin executive authority in future cases where the nondelegation doctrine might otherwise lack punch. 21 Why It Matters For Tax Most tax rules are found in regulations issued by the Internal Revenue Service (“IRS”) and the Treasury Department (“Treasury”) to fill in the gaps of statutes designed by Congress. Thus, any constitutional or administrative law doctrines limiting the authority of executive agencies to issue regulations could (at least in theory) open the door for taxpayers to argue that certain rules issued by the IRS and Treasury are invalid. The next phase in the development of the nondelegation and major questions doctrines will occur in the coming months, as the Supreme Court expected to issue a decision in Learning Resources, Inc. v. Trump. 22 Among other issues, Learning Resources requires the Court to consider the scope of the President's tariff authority in light of challenges under the nondelegation and major questions doctrines. Whether and how these doctrines are applied in Learning Resources and future cases should be of keen interest to those in tax law
Footnotes
1. 603 U.S. 369, 400 (2024).
2. J.W. Hampton Jr. & Co. v. U.S., 276 U.S. 394, 409 (1928) (emphasis added).
3. FCC v. Consumers' Research, 606 U.S. 656, 673 (2025) (citations omitted).
4. Id. (citations omitted).
5. See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935).
6. Lichter v. U.S., 334 U.S. 742 (1948).
7. Touby v. U.S., 500 U.S. 160 (1991).
8. Whitman v. Am. Trucking Ass'n, 531 U.S. 457 (2001).
9. Consumers' Research, 606 U.S. at 745-46 (2025) (Gorsuch, J., dissenting); Whitman, 531 U.S. at 487 (Thomas, J., concurring).
10. Loper Bright, 603 U.S. at 404 (emphasis added).
11. See Consumers' Research, 606 U.S. at 656.
12. See Paul v. U.S., 140 S. Ct. 342 (2019) (Kavanaugh, J.); Gundy v. U.S., 588 U.S. 128, 149 (2019) (Gorsuch, J., dissenting, joined by Roberts, C.J., and Thomas, J.) (proposing an alternative to the “intelligible principle” framework); id. at 149 (Alito, J., concurring) (supporting a reconsideration of the nondelegation doctrine); Dep't of Transp. v. Ass'n of Am. R.R., 575 U.S. 43, 66-68, 74, 77 (2015) (Thomas, J., concurring).
13. The major questions doctrine has been discussed as both an interpretive canon, see, e.g., Consumers' Research, 606 U.S. at 705 (Kavanaugh, J., concurring), and a “clear statement” rule, see Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).
14. U.S. v. Mead Corp., 533 U.S. 218, 229 (2001).
15. King v. Burwell, 576 U.S. 473, 485-86 (2015) (citations omitted).
16. 597 U.S. 697, 723-24 (2022).
17. See, e.g., Nat'l Fed'n Ind. Bus. v. OSHA, 595 U.S. 109 (2022) (per curiam); Ala. Ass'n of Realtors v. HHS, 594 U.S. 758 (2021) (per curiam); Burwell, 576 U.S. at 473; Util. Air Regulatory Group, 573 U.S. at 302; Gonzales v. Oregon, 546 U.S. 243 (2006); Whitman, 531 U.S. at 457; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000); MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994).
18. Consumers' Research, 606 U.S. at 705 (Kavanaugh, J., concurring); id. at 745 (Gorsuch, J., dissenting).
19. See Paul, 140 S. Ct. at 342 (Kavanaugh, J., statement respecting denial of certiorari).
20. See Gundy, 588 U.S. at 167 (Gorsuch, J., dissenting).
21. The Court's reluctance to apply the nondelegation doctrine may also prompt lower courts to limit agency discretion by resorting to the major questions doctrine or other principles that further nondelegation purposes. For example, the “void for vagueness” doctrine furthers nondelegation principles. See Sunstein, Cass R., Nondelegation Canons, 67 U. CHI. L. REV. 320 (2000). Vague laws “impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); see also U.S. v. Davis, 588 U.S. 445, 447-48 (2019) (explaining the constitutional foundations of the vagueness doctrine).
22.Case No. 24-1287 (Docketed June 17, 2025). At the time this writing went to press (January 9, 2026), the Court had yet to issue a decision in the case.
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