Clarence, the concurring opinion by Justice Gorsuch (just read it again, after the law review article you recommended) in WV v EPA is a pretty good description of the nondelegation doctrine (notice he mentions Philip Hamburger's work in addressing Elena Kagan's dissent) - Question : If the current round of litigation to reverse the NWS is not fruitful, would litigation using the Major Questions Doctrine to invalidate the NWS have any legs?
"In places, the dissent seems to suggest that we should not
be unduly “‘concerned’” with the Constitution’s assignment
of the legislative power to Congress. Post, at 29 (opinion of
KAGAN, J.). Echoing Woodrow Wilson, the dissent seems to
think “a modern Nation” cannot afford such sentiments.
Post, at 29–31. But recently, our dissenting colleagues
acknowledged that the Constitution assigns “all legislative
Powers” to Congress and “bar[s their] further delegation.”
Gundy, 588 U. S., at ___ (plurality opinion of KAGAN, J.)
(slip op., at 4) (internal quotation marks and alteration
omitted). To be sure, in that case we disagreed about the
exact nature of the “nondelegation inquiry” courts must em-
ploy to vindicate the Constitution. Id., at ___ (slip op., at
5). But like Chief Justice Marshall, we all recognized that
the Constitution does impose some limits on the delegation
of legislative power. See ibid.; Wayman, 10 Wheat., at 42–
43. And while we all agree that administrative agencies
have important roles to play in a modern nation, surely
none of us wishes to abandon our Republic’s promise that
the people and their representatives should have a meaningful say in the laws that govern them. Cf. Rucho v. Com-
mon Cause, 588 U. S. ___, ___ (2019) (KAGAN, J., dissenting)
(slip op., at 7) (“Republican liberty demands not only, that
all power should be derived from the people; but that those
entrusted with it should be kept in dependence on the peo-
ple” (internal quotation marks and alteration omitted)).6
Footnote 6: "6 In the course of its argument, the dissent leans heavily on two recent
academic articles. Post, at 29. But if a battle of law reviews were the
order of the day, it might be worth adding to the reading list. See, e.g.,
I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1493–
1494 (2021); D. Candeub, Preference and Administrative Law, 72 Admin.
L. Rev. 607, 614–628 (2020); P. Hamburger, Delegation or Divesting?,
115 Nw. L. Rev. Online 88, 91–110 (2020); M. McConnell, The President
Who Would Not Be King 326–335 (2020); A. Gordon, Nondelegation, 12
N. Y. U. J. L. & Liberty 718, 719 (2019); R. Cass, Delegation Reconsid-
ered: A Delegation Doctrine for the Modern Administrative State, 40
Harv. J. L. & Pub. Pol’y 147, 155–161 (2017); G. Lawson & G. Seidman,
“A Great Power of Attorney:” Understanding the Fiduciary Constitution
104–129 (2017); P. Hamburger, Is Administrative Law Unlawful? 377–
402 (2014); L. Alexander & S. Prakash, Reports of the Nondelegation
Doctrine’s Death are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297,
1298–1299 (2003); G. Lawson, Delegation and Original Meaning, 88 Va.
L. Rev. 327, 335–343 (2002); D. Schoenbrod, The Delegation Doctrine:
Could the Court Give It Substance? 83 Mich. L. Rev. 1223, 1252–1255,
1260–1261 (1985); see generally P. Wallison & J. Yoo, The Administra-
tive State Before the Supreme Court: Perspectives on the Nondelegation
Doctrine (2022)."
