USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
then raise their constitutional objections through judicial review in circuit court. The Axon decision permitted direct District Court challenges in at least some circumstances. For an analysis of the impact of the Axon decision, see Federal Courts, Leading Case, Axon Enterprise, Inc v FTC, 137 Harv. L. Rev. 340 (Nov. 2023). 3. Nature of the Decision 3.1 Challenging Primary Legislation US federal agencies only have authority to the extent delegated to them by Congress. See Louisiana Public Service Commission v FCC, 476 U.S. 355, 374 (1986) ( “[A]n agency literally has no power to act… unless and until Congress confers power upon it.” ). While, in theory, legisla - tive delegations of authority to a federal agency may be challenged on constitutional grounds, in practice invocation of the non-delegation doc - trine has been exceedingly rare. More generally, with respect to challenges to pri - mary legislation (aside from legislative delega - tions of authority), in order to challenge a federal statute, a party first must prove the existence of a live case or controversy pertaining to the statute that results in direct harm to the party bringing the challenge. In other words, such a party must show aggrievement and standing to sue. Assuming both can be shown, parties could in theory challenge the constitutionality of the statute or the alleged inconsistency of the statute with other federal legislation. If a party challenges the legality of a federal statute in the context of a private dispute to which the United States is not a party (or challenges the consti - tutionality of a state statute in a case in which a state is not a party) in US federal court, it must comply with the notice requirements of Rule 5.1 of the Federal Rules of Civil Procedure. State
statutes may be challenged on similar grounds if they allegedly violate the US Constitution, a state constitution, or create inconsistencies with other federal law or state law. One example of state legislative action challenged on constitu - tional grounds includes a Texas state law giv - ing preference to in-state electric transmission developers: NextEra Energy Capital Holdings Inc v Jackson, 1:19-CV-626-DII, slip op. (W.D. Tex. 2024) (striking down the preference under the dormant Commerce Clause of the US Constitu - tion). Another example is now invalidated state laws banning same-sex marriage struck down in Obergefell v Hodges, 576 U.S. 644 (2015). 3.2 Challenging Secondary Legislation Rules or regulations adopted pursuant to the authority granted by a federal statute can be challenged on a variety of grounds. For example, the rules could exceed the statutory jurisdiction of the agency promulgating them. In Texas Pipe - line Association v FERC, 661 F.3d 258 (2011), the United States Court of Appeals for the Fifth Circuit struck down a Federal Energy Regulatory Commission rule requiring intrastate pipelines to post data pertaining to their operations, finding that the statute granting FERC additional author - isation to promote transparency in natural gas markets did not extend FERC’s jurisdiction to intrastate markets that were primarily regulated by the states. Regulations also may be challenged for proce - dural infirmities including the failure to comply with notice and comment rule-making proce - dures. See, eg, Liquids Pipeline Association v FERC, 109 F.4th 543, 547-49 (D.C. Cir. 2024). Rules also can be challenged if Congress direct - ed agencies to conduct a review or analysis prior to releasing a rule and if the agency failed to do so. See International Swaps & Deriva - tives Association v CFTC, 887 F. Supp. 2d 259
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