Investor Presentaiton
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within its lane or not. Yakus v. United States, 321 U.S.
414, 426 (1944).
How much discretion the Constitution tolerates also
"varies according to the scope of the power" at stake.
Whitman, 531 U.S. at 475. When delegation swells "to
immense proportions," Congress' standards “must be
correspondingly more precise." Synar v. United States,
626 F. Supp. 1374, 1386 (D.D.C. 1986) (three-judge panel).
Delegations that "encompass[] all American enterprise,"
for example, require more rigorous standards than those
limited to "a single industry." Int'l Union, United Auto.,
Aerospace & Agr. Implement Workers of Am., UAW v.
OSHA, 938 F.2d 1310, 1317 (D.C. Cir. 1991). The
Constitution therefore demands "substantial" guidance
for air standards that, as here, "affect the entire national
economy." Whitman, 531 U.S. at 475; see also Michigan
v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring)
(noting "potentially unconstitutional delegation[]" if EPA
had unfettered discretion over "which policy goals" it
pursued). CAA Section 109 satisfied this standard
because Congress limited EPA's authority to a "discrete
set of pollutants" and tied its discretion to specific health-
and-safety metrics and "air quality criteria that reflect the
latest scientific knowledge." Whitman, 531 U.S. at 473
(analyzing 42 U.S.C. § 7409(b)(1)-(2)).
Properly understood, Section 111 satisfies the non-
delegation doctrine, too. Cabining the statute to source-
level "systems" leverages EPA's scientific and
engineering expertise about techniques for optimizing a
source's emission reductions. This guardrail is
"intelligible." And by limiting Section 111 to sources
(rather than their owners or entire markets), there is little
risk of "delegation running riot." A.L.A. SchechterView entire presentation