SCOTUS has one more card up its sleeve this week.

[PA Democrat]

35. Excellent point.

Good discussion of this strategy here:

In their briefing at the Supreme Court, the parties challenging the Clean Power Plan relied heavily on an interpretive presumption sometimes called the “major questions” rule. According to the challengers, laws passed by Congress must speak “with unmissable clarity” before authorizing an agency to address matters with major political or economic significance. Applying that rule, the challengers argued that the Clean Power Plan is legitimate only if the Clean Air Act specifically authorizes the precise methods of reducing carbon dioxide emissions that the rule prescribes. The challengers further claimed that the Supreme Court must apply this “major questions” rule as a way of enforcing a constitutional prohibition on laws that delegate legislative authority to agencies—the so-called “nondelegation doctrine.”

CAC filed an amicus brief supporting the EPA on behalf of Julian Davis Mortenson, a professor at the University of Michigan Law School and a leading scholar on constitutional history relating to legislative delegations of authority. Our brief explains that under the original understanding of the Constitution, there is no prohibition on legislative delegations to enforce, either directly or through a “major questions” rule.

As the brief explains, at the time of the Founding, legislative authority was understood to be inherently delegable. The British Parliament and other legislatures across the Anglo-American world had a long tradition of delegating broad discretionary rulemaking authority to agents, who were not regarded as impermissibly “making law” when they exercised that authority. Consistent with theory and precedent, legislative delegations were a pervasive feature of state governance in America, both before and after Independence.

As we further explain, the ratification of the Constitution did not introduce new restrictions on delegation. Although the Constitution divides power among three branches and assigns all “legislative powers” to Congress, nothing about that division requires limits on Congress’s power to delegate rulemaking authority to executive agencies, so long as Congress retains ultimate control over the legislative process. Furthermore, the debates surrounding the Constitution’s drafting and ratification betray no concern about this type of legislative delegation.

https://www.theusconstitution.org/litigation/west-virginia-v-epa/