Justice Alito’s concurrence in the recent case of Gundy v. United States signaled that the nondelegation doctrine may be due for a revival. Nondelegation is the constitutional principle that, among other things, Congress cannot transfer its legislative powers to the Executive Branch. Although a plurality of the Supreme Court in Gundy declined to revive a robust conception of the doctrine (which the Court last used to strike down a federal law in 1935), there seems to be increasing judicial interest in declaring open season on congressional delegation of legislative power. This trend has impacted the practice of administrative law, encouraging litigators to invoke the nondelegation doctrine in challenges to executive action.

That is exactly what the State of Texas, along with a coalition of other states, has done in a recent lawsuit, asking a federal court to prevent President Biden from revoking a permit to build the Keystone XL Pipeline. The Texas complaint lists a number of theories of relief, including nondelegation. Texas may be onto something with its constitutional challenge, but its nondelegation argument—as currently presented—appears to address the wrong thing: Instead of taking on the text of a statute itself, Texas trains its fire on the executive’s application of a statute. Such a framing is contrary to the Court’s teachings on nondelegation, and it may frustrate Texas’s chances of success on this issue.

On his first day in the White House, President Biden signed an executive order that revoked TransCanada’s Keystone XL permit, which President Trump had issued to the company back in March of 2019. A State Department estimate had pegged the number of direct and indirect jobs that would have come from the pipeline project at 26,100, and reports indicated that construction of Keystone XL could have contributed upwards of $3 billion to national economic output. Nevertheless, citing environmental concerns, President Biden yanked the permit. In his executive order, the President cited no statutory authority for the revocation; it appears the power to issue the permit in the first place derived from the Temporary Payroll Tax Cut Continuation Act of 2011, but that law says nothing of revocation.

Texas argues that “[t]o the extent that the President or Cabinet Defendants point to a general authority to regulate the environment or conduct foreign relations actually conferred on them by Congress, such a theory runs afoul of the nondelegation doctrine.” The complaint also notes that, “following a reasonably diligent search, Plaintiff States are aware of no statute specifically authorizing the President to revoke the Keystone XL permit in the manner demonstrated here.” In any event, Texas concludes, “[t]o the extent that the defendants rely on a more general law supposedly allowing them to take this action, this application of that law violates the nondelegation doctrine.”

But there is a potential problem with this apparent “as-applied” nondelegation argument. As the Supreme Court explained in Whitman v. American Trucking Associations, the nondelegation inquiry is about the text of the underlying law, not the executive’s application of said law. Whitman was a case on appeal from the D.C. Circuit, which had held that while Section 109(b)(1) of the Clean Air Act (instructing the Environmental Protection Agency to set certain ambient air quality standards) did not violate the nondelegation doctrine by delegating too much legislative power to the agency, the EPA’s interpretation of the law did contravene the doctrine. The EPA had interpreted a strong discretionary authority from the text of the statute, and the D.C. Circuit struck down this interpretation as violative of the nondelegation doctrine, despite the statute’s constitutionality. Writing for the Court in Whitman, Justice Scalia rejected this conception of the nondelegation doctrine. Instead, he spelled out the nondelegation inquiry as one that asks “whether the statute has delegated legislative power to the agency” (emphasis added).

If the executive has interpreted the statute to give itself impermissible legislative power, one of two things is occurring: (1) the executive’s interpretation is correct, the statute itself violates the nondelegation doctrine, and the court should invalidate the statute; or (2) the executive’s interpretation is contrary to law, and the court should set aside action purportedly taken on the basis of the statute because the action is ultra vires. The latter option is not a nondelegation issue; it is an issue of legal authority.

But there is a theory that ties these two options together, one that may help Texas sharpen its nondelegation argument: the nondelegation doctrine as a canon of statutory interpretation. I have written about the nondelegation canon for this blog in the past—essentially, Dean John Manning and Professor Cass Sunstein have each penned articles arguing that in some cases, courts avoid striking down statutes on nondelegation grounds by reading laws to avoid nondelegation problems. Applying the canon to a given text, the court will read Congress’s delegation of power to the Executive Branch in a narrow way, cabining executive discretion to save the statute (or, at least, not deal with the nondelegation issue).

Texas’s better argument, therefore, might be something along the lines of the following: If the authorizing statute(s) in this case allowed presidential revocation of a permit after issuance, that/those statute(s) would violate the nondelegation doctrine. The best reading of the law is one of cabined discretion: no power to revoke the permit. Texas would then argue that the President’s revocation, therefore, may not be a violation of the nondelegation doctrine, but it is an ultra vires exercise of executive power that should be set aside on the grounds that it does not comport with law.

It is, to be sure, an open question whether the revocation of a permit is even an exercise of legislative power that would raise delegation concerns. One might contend that permitting actually falls into a category of law that even Justice Gorsuch, in his dissent in Gundy, would have allowed: assignment to the executive of “certain non-legislative responsibilities” like foreign affairs functions. But the statute/executive action divide is a threshold matter that a court must tackle before reaching such a question.

Texas’s lawsuit is yet another example of how the nondelegation doctrine may be re-emerging. Courts, agencies, Congress, and litigants will continue to grapple with the nuances of nondelegation in practice. In the meantime, keep an eye on what the courts do with this part of the Texas lawsuit.