There’s a simple promise at the heart of our Constitution: the people we elect—members of Congress, not judges— are the ones who make the laws. This case raises a specific question about that promise: what happens when Congress leaves a key question in a law unanswered, and a court tries to supply the answer itself?
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Case Summary
A few years ago, Congress passed a law aimed at phasing down certain chemicals used in refrigeration and air conditioning—materials that quietly power everyday life in America. These chemicals keep grocery stores stocked, hospitals running, and homes livable.
But this law didn’t just regulate a product. It created a marketplace. Under the law, companies must obtain government-issued “allowances” to produce or use these chemicals. Those allowances aren’t symbolic—they are incredibly valuable. They determine which businesses can operate, which can grow, and which may be forced out entirely. Billions of dollars hang in the balance.
Congress decided how quickly to phase these chemicals down. It even set a baseline for measuring them. But when it came to the most important question—who gets those valuable allowances, and why—Congress said nothing.
It handed that power, in full, to the U.S. Environmental Protection Agency. That silence created a Constitutional problem—but not the one the lower court addressed.
When Congress gives power to a federal agency, it must also provide an intelligible principle about the limits of that power. It must draw the boundaries so that regulators are carrying out the law—not create it themselves.
That requirement has a name: the nondelegation doctrine. At its core, it ensures that Congress cannot simply hand off its lawmaking responsibility to unelected officials, because once that happens, something critical is lost: accountability.
When this case reached the courts, the problem was clear: Congress had created a massive regulatory program without explaining how it should work at its most consequential level. It had given the EPA what amounts to a blank check to reorder an entire industry.
The Constitution demands more than that.
But instead of confronting that failure, the lower court took a different path and tried to fix it. The court searched through legislative history—old hearings, scattered comments, fragments of intent—and pieced together a rule that Congress never actually wrote into the law. Congress knows exactly how to write an allocation rule — it had done it before in related statutes. And although it borrowed other parts of that law, it deliberately left out the allocation standard here. But instead of getting rid of the law, the lower court did Congress’s job for it by inventing an intelligible principle to save the law, even though that principle does not appear in the law itself.
In other words, where Congress left a blank space, the court took it upon itself to write a new law.
That might sound like problem-solving, but it changes everything because if courts can step in and supply the missing rules (aka if they can reconstruct what Congress “must have meant”), then Congress no longer has to make the hard decisions at all. And our Framers saw a clear problem in having the same people who write the laws be the judges who get to decide what those laws mean once a dispute arises. That is why the Framers separated the power to write the laws and the power to interpret the laws to separate branches of our government.
Our amicus brief focuses on that move by the lower court. When Congress does not correctly write a statute, it is not the role of the judiciary to rewrite the statute to bring it back within bounds. The nondelegation doctrine isn’t a suggestion. It’s a command. And if it can always be worked around—if courts can always invent a guiding principle after the fact—then it stops protecting anything at all. That’s why Mountain States Legal Foundation stepped in by filing an amicus brief.
This case isn’t about siding with one company or one industry. It’s about defending the structure that keeps government accountable to the people. Because the real question here isn’t how to divide up chemical allowances.
It’s this: If Congress doesn’t make the law, can someone else do it for them? The answer is no. Not an agency. Not the courts. Not anyone.
What’s at Stake?
The stakes reach far beyond this single case.
If the lower court’s approach stands, it would mean that federal courts can ignore the Constitution and write laws themselves. The Framers of our Constitution specifically did not want that. Congress makes the laws; courts can only interpret the laws, not themselves write the laws. Unelected judges simply do not have that much power over Americans under our Constitution.
This case gives the Supreme Court an opportunity to restore that principle. Not by creating a new rule—but by enforcing one that already exists.
We’re asking the Court to affirm a basic principle: when Congress does not write a law, the federal courts cannot step in to write that law instead.
