We have, of course, already blogged about the Supreme Court’s holding in Trump v. Slaughter, 25-332 (2026). One aspect of the decision, however, deserves separate attention because it may foreshadow future challenges to one of the FTC’s, and perhaps the CFPB’s, most significant sources of regulatory authority.
Although not necessary to the Court’s holding, Chief Justice Roberts and, even more pointedly, Justice Gorsuch questioned the extraordinary breadth of the Federal Trade Commission’s authority to define by regulation what constitutes an “unfair or deceptive act or practice” under Section 5 of the Federal Trade Commission Act.
Chief Justice Roberts observed that:
“the FTC has the power to promulgate substantive rules that carry the force of law. In the consumer-protection realm, for instance, the FTC is tasked with giving content to the startlingly abstract idea of ‘acts or practices which are unfair or deceptive.’”
Justice Gorsuch went considerably further. Referring generally to modern administrative agencies, he wrote:
“Often, these agencies do all this with hardly any statutory guidance, based on broad grants of legislative authority. The FTC, for example, enjoys what the Court calls the ‘startling’ power to define, outlaw, and prosecute any ‘acts or practices which are unfair or deceptive.’”
Professor Jeff Sovern of the University of Maryland Francis King Carey School of Law, writing on June 30, 2026 on the Consumer Law & Policy Blog correctly observed that Justice Gorsuch’s formulation appears far more skeptical than the Chief Justice’s. In Professor Sovern’s view, Justice Gorsuch’s language suggests that he questions whether Congress may constitutionally confer such sweeping authority on the FTC in the first place.
Professor Sovern also notes that Congress did provide some guidance regarding unfairness through 15 U.S.C. § 45(n), which limits unfairness findings to practices causing or likely to cause substantial consumer injury that is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or competition.
That statutory limitation, however, may not answer Justice Gorsuch’s broader constitutional concern.
The issue Justice Gorsuch appears to be raising is not simply whether Congress supplied enough standards to guide the FTC’s exercise of its unfairness authority. Rather, it is whether Congress may constitutionally delegate to an executive agency the essentially legislative power to determine what business conduct throughout the American economy is unlawful.
To date, the Supreme Court has generally addressed such concerns through the so-called “major questions doctrine” rather than by reviving the constitutional non-delegation doctrine. Under the major questions doctrine, courts require Congress to speak with unmistakable clarity before concluding that it intended to confer authority over questions of vast economic and political significance. Applying that principle, the Court invalidated the EPA’s Clean Power Plan in West Virginia v. EPA, 597 U.S. 697 (2022), struck down the Secretary of Education’s student loan forgiveness program in Biden v. Nebraska, 600 U.S. 477 (2023), invalidated the CDC’s nationwide eviction moratorium in Alabama Association of Realtors v. Department of Health & Human Services, 594 U.S. 758 (2021) (per curiam), and stayed OSHA’s vaccine-or-test mandate in National Federation of Independent Business v. Department of Labor, OSHA, 595 U.S. 109 (2022) (per curiam). Each of those decisions rested primarily on a statutory interpretation that Congress had not clearly authorized the agency’s asserted exercise of power, rather than on constitutional limits on Congress’s ability to delegate legislative authority.
Justice Gorsuch, however, has long suggested that the Court should go further. His dissent in Gundy v. United States, 588 U.S. 128 (2019), argued for reinvigorating the Constitution’s non-delegation doctrine, under which Congress may not transfer its legislative power to executive agencies absent meaningful limiting principles. His concurrence in Trump v. Slaughter appears to continue that theme.
Justice Gorsuch’s concurrence also fits comfortably within a long line of Supreme Court decisions recognizing constitutional limits on Congress’s ability to delegate legislative power. Although the Court has not invalidated a federal statute on nondelegation grounds since Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), those decisions remain good law and stand for the proposition that Congress must supply meaningful standards governing an agency’s exercise of delegated authority. More recent decisions (including Mistretta v. United States, 488 U.S. 361 (1989), Touby v. United States, 500 U.S. 160 (1991), and Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001)) reaffirmed that the Constitution imposes outer limits on legislative delegations even while upholding the statutes before the Court. Particularly noteworthy is Justice Rehnquist’s concurring opinion in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980) (the “Benzene Case”), which argued that Congress may not simply announce a broad public policy objective while leaving an agency to determine the substance of the law. Justice Gorsuch’s concurrence in Trump v. Slaughter suggests that at least some (and maybe a majority of) members of the current Court may be prepared to give renewed force to those constitutional principles.
If Justice Gorsuch’s views ultimately attract a majority of the Court, agencies could face challenges that are considerably more sweeping than those brought under the major questions doctrine. Rather than asking whether Congress clearly authorized a particular rule, courts would instead ask whether Congress constitutionally could have delegated such broad policymaking authority in the first place.
These observations may have implications extending well beyond the FTC.
Although Trump v. Slaughter involved the FTC rather than the CFPB, it is difficult to read Chief Justice Roberts’ description of the FTC’s authority as the power to give content to the “startlingly abstract” concept of unfair or deceptive practices, or Justice Gorsuch’s criticism of Congress’s conferral of such broad policymaking authority, without wondering whether they harbor similar concerns about the CFPB’s broader authority to define and prohibit “unfair, deceptive, or abusive” acts or practices under the Consumer Financial Protection Act.
Indeed, courts have already shown reluctance to permit the CFPB to rely on its UDAAP authority in expansive ways. In American Bankers Association v. CFPB, No. 2:22-cv-00125 (E.D. Tex. Sept. 8, 2023), the district court held that the CFPB exceeded its statutory authority when it amended its UDAAP Examination Manual to assert that discrimination could itself constitute an unfair act or practice, notwithstanding the existence of separate federal fair lending statutes (such as the Equal Credit Opportunity Act and Fair Housing Act, among others) specifically addressing discrimination.
Likewise, the FTC’s recently invalidated non-compete rule illustrates the judiciary’s growing skepticism toward agency assertions of broad regulatory authority based on highly general statutory language. Although the district court ultimately invalidated the rule on statutory rather than constitutional grounds, the litigation demonstrated the increasing willingness of courts to scrutinize expansive agency claims of regulatory authority.
Whether the Supreme Court is prepared to revive the nondelegation doctrine remains to be seen. But the majority opinion in Trump v. Slaughter (joined in by 6 members of the Court) and Gorsuch’s concurring opinion suggest that at least some members (and perhaps all 6 of the Court’s conservative Justices) of the Court are beginning to look beyond the major questions doctrine and toward the more fundamental constitutional question. The major questions doctrine asks whether Congress clearly authorized a particular agency action. The nondelegation doctrine asks the far more consequential question whether Congress constitutionally may confer such open-ended policymaking authority on an executive agency in the first place.
If the Court eventually revives the constitutional nondelegation doctrine, both the FTC’s UDAP authority and the CFPB’s UDAAP authority could become targets of future constitutional challenges. Whether those challenges ultimately succeed is impossible to predict. But Chief Justice Roberts’ description of the FTC’s authority as “startlingly abstract,” coupled with Justice Gorsuch’s unmistakable skepticism toward broad legislative delegations, suggests that this issue may soon move from academic debate to active constitutional litigation. Consumer financial services providers, their counsel, and regulators alike would be well advised to pay close attention.