regulatory authority—approving, implementing, and launching financial instruments with nationwide economic impact—without any meaningful federal oversight. Under well-settled law, Congress may not delegate its legislative powers absent an “intelligible principle” to guide the exercise of discretion. Gundy v. United States , 588 U.S. 128, 129 (2019). No intelligible principle exists where “‘Congress ha[s] failed to articulate any policy or standard’ to confine discretion.” Id . (quoting Mistretta v. United States , 488 U.S. 361, 373 (1989)) (emphasis added). While the Supreme Court routinely upholds congressional delegations of power to agencies to execute the law, it pays particular attention to delegations to private entities. See, e.g. , Carter v. Carter Coal Co. , 298 U.S. 238 (1936). The Fifth Circuit has developed a three-part test, based on Supreme Court precedent, for determining the constitutionality of private delegations: Private delegations are . . . constitutional only on three conditions. First, government officials must have final decision-making authority. Second, agencies must actually exercise their authority rather than “reflexively rubber stamp [work product] prepared by others.” And third, the private actors must always remain subject to the “pervasive surveillance and authority” of some person or entity lawfully vested with government power. Consumers’ Rsch. v. Fed. Commc’ns Comm’n , 109 F.4th 743, 769–70 (5th Cir. 2024) (quoting Sierra Club v. Lynn , 502 F.2d 43, 59 (5th Cir. 1974); Sunshine Anthracite Coal Co. v. Adkins , 310 U.S. 381, 388 (1940)) (emphasis and
17
Made with FlippingBook - Online catalogs