Administrative Law for Educational Administrators

Introduction

Administrative law is the body of law governing how public agencies create and enforce rules, make decisions, and are held accountable. For K–12 and higher education administrators, understanding administrative law is essential. Education leaders operate within a web of statutes and regulations, ranging from school board policies and state education codes to federal regulations issued by the U.S. Department of Education. These rules carry the force of law, yet they are crafted and applied outside the traditional legislative and courtroom settings. How are such rules made? What process is due before depriving someone of a right or benefit, like a student’s education or a teacher’s job? How much authority can schools or agencies wield, and what are the limits? This module addresses these questions through seminal cases that shaped U.S. administrative law and recent developments that highlight emerging controversies.

Seminal Cases in Administrative Law and Education

Delegation of Authority and Rulemaking Power

A foundational question in administrative law is how and why agencies, such as state Boards of Education or the U.S. Department of Education, have the power to make binding rules. Under the U.S. Constitution, Congress (and state legislatures) enact laws, and the executive branch carries them out. Yet modern governance demands expertise and adaptability that legislatures alone cannot provide. The solution has been delegation: legislatures delegate authority to agencies to “fill in the details” of laws by promulgating regulations. The Supreme Court blessed this practice in J. W. Hampton, Jr. & Co. v. United States (1928), articulating the “intelligible principle” doctrine. Chief Justice Taft wrote that if Congress lays down an intelligible principle to guide the agency, then delegating power to that agency is not an unconstitutional transfer of legislative power. In other words, as long as the law gives an agency a clear goal or standard, the agency can flesh out the specifics. This doctrine underpins how education laws work: Congress might require “equal access” for students with disabilities, but the Department of Education can define detailed procedures in regulations under that broad principle. States do likewise (e.g., a state law may mandate “safe and orderly schools,” leaving the state board to issue specific disciplinary regulations).

For decades, the nondelegation doctrine, which limits excessive delegation, has had a very limited role. The Supreme Court struck down laws for improper delegation only twice, in 1935, at the height of skepticism toward New Deal agencies. Those cases (e.g., A.L.A. Schechter Poultry Corp. v. United States, 1935) involved statutes granting virtually unfettered discretion to the executive with no meaningful standard. Since then, courts have upheld even broad delegations. In education, state legislatures routinely delegate authority to school districts and state education agencies. For example, a state law might empower the State Board of Education to “promulgate regulations for teacher certification standards” or require local school boards to adopt policies “consistent with state guidelines.” As long as such statutes give some standards (even if general, like “to promote effective teaching”), they are typically upheld. This flexibility allows educational policies to adapt without constant legislative micromanagement.

With delegation comes the agency’s rulemaking power. Agencies create regulations (also called administrative rules) through processes often mandated by the Administrative Procedure Act (APA) or state APA equivalents. The APA, a federal law enacted in 1946, requires most regulations to go through a notice-and-comment process: the agency must publish proposed rules, allow the public to comment, and then publish final rules with responses to significant concerns. This ensures transparency and input. A seminal case on rulemaking and agency interpretation is Chevron U.S.A., Inc. v. Natural Resources Defense Council (1984). Although it was not an education case, but it such a transformative administrative law decision that affects all agencies, including education. In Chevron, the Supreme Court set out a two-step approach for courts reviewing an agency’s interpretation of a law it administers. First, ask if Congress’s intent on the precise issue is clear; “if the intent of Congress is clear, that is the end of the matter,” as both courts and agencies must give effect to the unambiguous law. But if the law is silent or ambiguous, the court moves to step two: it should defer to the agency’s reasonable interpretation of the statute. This principle, known as Chevron deference, recognizes that when laws are ambiguous, agencies, with their expertise and policy-making role, have leeway to choose reasonable interpretations, rather than judges imposing their own preferences.

Why does Chevron matter for education administrators? Consider the U.S. Department of Education interpreting a statute like the Individuals with Disabilities Education Act (IDEA) or Title IX of the Education Amendments of 1972. These laws contain broad terms, for example, what counts as a “free appropriate public education” under IDEA, or what “sexual harassment” means under Title IX regulations. Under Chevron, if the statute itself isn’t crystal clear, courts will uphold the Department’s interpretation as long as it’s reasonable. For instance, if Congress left a “gap” for the agency to fill, that is seen as an express delegation to make rules with force of law, and those rules bind schools. One vivid quote from Chevron explains that making policy and rules to fill gaps “necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress,” and when Congress explicitly leaves a gap, agencies have authority to regulate, with such rules given “controlling weight” unless they are “arbitrary, capricious, or manifestly contrary to the statute.” In practice, this means educational administrators must stay abreast of agency regulations (and even sub-regulatory guidance) because courts will often enforce those interpretations. Whether it’s a rule on how colleges must handle sexual misconduct cases or how school lunch programs are administered, agencies have power to define implementation details, and those definitions often carry legal force.

However, agency power is not unchecked. The APA and case law impose procedural requirements, such as notice-and-comment, and standards of judicial review to prevent abuse. The APA’s “arbitrary and capricious” standard (5 U.S.C. § 706(2)(A)) is a general rule that courts will invalidate agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. What does this mean? The Supreme Court elaborated in Motor Vehicle Manufacturers Ass’n v. State Farm (1983). Although it was a case about auto safety regulations, it established principles applicable to all agencies. In State Farm, the Court struck down the federal highway agency’s repeal of a car safety rule (requiring airbags or automatic seatbelts) as arbitrary and capricious because the agency failed to offer a reasoned explanation. Justice White, writing for the Court, explained that even though courts defer to agency policy choices, the agency must examine relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” If an agency changes policy (like rescinding a rule), it “is obligated to supply a reasoned analysis for the change” (especially when people have relied on the old policy). In reviewing an agency’s explanation, courts will check that the decision was based on relevant factors and not a clear error in judgment. Essentially, agencies can change course, but not on a whim or mere political preference—they need to justify the change with evidence and reasoning.

Due Process in Administrative Proceedings

Perhaps the most personal way administrators encounter administrative law is through procedural due process requirements. The Fifth and Fourteenth Amendments to the U.S. Constitution guarantee that the government shall not deprive any person of “life, liberty, or property, without due process of law.” For educational administrators, this often boils down to: when must we give a hearing or other procedural protections before taking action affecting someone’s rights? Two landmark Supreme Court cases, one involving students and the other involving public employees, define the modern approach.

Goss v. Lopez (1975) is a seminal education law case. It held that public school students have due process rights in school discipline. In Goss, nine students in Ohio were suspended from public school for up to 10 days without any hearing. The Supreme Court ruled this violated the Fourteenth Amendment. Ohio, having chosen to provide free public education to all children, created a property right in education. Thus, “having chosen to extend the right to an education to [its young citizens] generally, Ohio may not withdraw that right on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred.”

Education is not a mere privilege that officials can take away at will; it’s an entitlement protected by due process. The Court recognized two interests at stake for students: a property interest in the educational benefits and a liberty interest in their reputation, since a suspension could damage the student’s standing and future opportunities. Though a 10-day suspension might seem minor, the Court said it is not de minimis; even short removals cannot be imposed arbitrarily. What process is “due” in this context? The Court outlined a minimal approach: for suspensions of 10 days or less, due process requires notice of the charges, an explanation of the evidence if the student denies misconduct, and an opportunity for the student to present their side of the story (an informal hearing). Generally this should happen before the suspension, though in emergencies (e.g. a student is endangering others), immediate removal is allowed with a hearing soon after. The process need not be a trial; it can be quick and informal, but it must be fair. This ruling had a profound impact on K–12 administrators: every school had to revise its discipline policies to include at least an informal hearing for suspensions. It affirmed that students don’t shed their constitutional rights at the schoolhouse gate, at least when it comes to being removed from school.

For higher education administrators, due process also applies but with some nuances. A key early case was Dixon v. Alabama State Board of Education (5th Cir. 1961). Although it was not a Supreme Court case, but it was a landmark federal appellate decision. It held that even at a public college, students (in that case, college students expelled for misconduct during the civil rights era) were entitled to notice and “some opportunity for hearing” before being expelled. Dixon helped pave the way for Goss (1975) by establishing that public education (college included) is not immune from due process.

However, the Supreme Court later drew a line between disciplinary dismissals and academic dismissals in higher education. In Board of Curators of University of Missouri v. Horowitz (1978), a medical student was dismissed for poor academic performance without a formal hearing. The Court held that a formal hearing was not required for an academic decision. A professor’s evaluation of a student’s academic ability is not the kind of factual determination that a hearing could challenge in the same way as a disciplinary accusation. Academic judgments receive more deference. As long as the school substantially followed its own academic evaluation procedures and the decision was not arbitrary or motivated by bad faith, due process was satisfied by the school’s careful review process, even without an adversarial hearing. A related case, University of Michigan v. Ewing (1985), echoed that courts should not override a university’s academic decisions unless they are such a “substantial departure from accepted academic norms” that they suggest an error or injustice (a very high bar). Together, these cases advise that while students have due process rights, the scope depends on context: disciplinary sanctions, which resemble punishment for misconduct, require a chance to hear and rebut evidence (thus more formal process), whereas academic judgments, such as grades, evaluations, decisions to dismiss for failing performance, are given more leeway, on the assumption that educators are the experts in academic standards.

The principles of the cases above underscore a broader theme: procedural due process is flexible, but at minimum it requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. For educational administrators, implementing these principles means establishing fair procedures for decisions like student discipline, employee discipline, and non-renewal of contracts. It also means training staff so that they understand why “due process” isn’t a bureaucratic hoop, but a constitutional promise that enhances fairness and accuracy in decision-making. As Justice White noted in *Goss*, “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation”. You scale the process to the situation: a 10-day suspension might only need an informal meeting, but a long-term expulsion may need a formal hearing with witnesses; a teacher’s dismissal might warrant an evidentiary hearing, whereas a bus route change affecting a student might just need notice to parents and a chance to discuss informally. Administrators should be attuned to when due process rights are triggered (whenever the school’s action will significantly impair a person’s education, reputation, or employment) and calibrate the response accordingly.

Administrative Discretion and Judicial Review

Educational administrators often exercise discretion, which is judgment in making decisions where law isn’t prescriptive. This could be a principal deciding how to apply a vague policy, a school board deciding to promulgate a new regulation, or a university interpreting a regulatory requirement. How much will courts second-guess these administrative decisions? That brings us to the judicial review of administrative action.

A cornerstone case on the scope of judicial review is Citizens to Preserve Overton Park v. Volpe (1971). The case was about a plan to build a highway through a public park (again, not an education case, but a foundational administrative law decision). The statute in question said the government should not approve roads through public parks if a “feasible and prudent” alternative exists. The Secretary of Transportation approved the park route without detailed findings. Residents sued. The Supreme Court made some key points that resonate broadly. First, there is a “strong presumption” of reviewability of agency action. Agencies rarely have absolute discretion immune from review. APA §701 says judicial review is not available if statutes preclude review or “agency action is committed to agency discretion by law.” However, Overton Park said that exception is very narrow, basically only when there’s “no law to apply.” Second, when reviewing an agency’s decision under the “arbitrary and capricious” standard (for informal decisions), courts must conduct a “searching and careful” inquiry into the record to ensure the decision was rational. They should ask: did the agency consider the relevant factors? Did it avoid a clear error of judgment? However, the court is not to substitute its own judgment for that of the agency. It’s a deferential standard, but not a toothless one. In Overton Park, the Court remanded the case because the Secretary had given no reasons initially; on remand, the agency had to provide an explanation showing it considered whether alternatives to using the park were truly imprudent. The case also exemplified that even high-level policy decisions (here balancing highway development vs park preservation) are subject to legal standards and review.

Translating this to education: Suppose a state Department of Education issues regulations changing how school performance is measured, or a local board decides to close a school citing budgetary reasons. A court reviewing such actions under an arbitrary-and-capricious standard would check that the agency followed required procedures and had a rational basis for its choice. Did the board consider the impact on the community? Did the state department have evidence for the new policy and respond to critical comments? If so, the court will likely uphold it, even if the policy is controversial. If not, say a school board closed a school in a seemingly discriminatory or whimsical way, or a department set a rule with no explanation—courts might overturn it as arbitrary.

Another aspect of discretion is interpretive discretion, meaning agencies interpreting their own regulations. Historically, courts gave strong deference here too, known as Aueror Seminole Rock deference. However, the Supreme Court’s decision in Kisor v. Wilkie (2019) narrowed this deference. It instructed courts to only defer to an agency’s interpretation of its regulation when the regulation is genuinely ambiguous, the agency’s interpretation is reasonable, and the agency interpretation is authoritative and consistent. This is a technical point, but for administrators: when regulations are unclear, agencies, such as a state education department, often issue guidance memos or policy letters. Courts might defer to those interpretations if they meet the Kisor criteria, but they are not bound to if, for example, the agency’s position is a new litigating stance or conflicts with prior guidance. In education, this came up with things like guidance documents from the U.S. Department of Education on Title IX or the meaning of FERPA privacy rules.

Judicial review in education also intersects with civil rights laws and constitutional claims. For instance, when a school’s action is challenged as violating equal protection or free speech, courts review de novo (anew) rather than deferring to the school’s discretion. However, when the challenge is that an agency action is illegal under a statute or arbitrary under the APA, the reviewing court often confines itself to the administrative record and the deferential standards discussed.

A critical recent trend has been the Supreme Court’s reinvigoration of the so-called major questions doctrine. This doctrine holds that if an agency claims an expansive power of “vast economic and political significance,” courts will not assume Congress meant to allow that without a clear statement. In simple terms, agencies shouldn’t discover elephants in mouseholes (i.e., assert sweeping regulatory power from vague statutory language). Although not brand-new, this principle took on new force in cases like West Virginia v. EPA (2022) and Biden v. Nebraska (2023). The latter directly concerned education, as it struck down the Biden Administration’s student loan forgiveness program. In Biden v. Nebraska, the Department of Education had invoked a post-9/11 law, the HEROES Act, to cancel hundreds of billions in student loan debt citing the COVID-19 emergency. The Supreme Court in 2023 found this unlawful: the Act did not clearly authorize cancellation of that magnitude. Chief Justice Roberts, for the majority, treated it as a straightforward statutory interpretation, but explicitly noted that Congress must speak clearly if an agency is to alter the balance between the state and federal government or the economy in a major way. Canceling $400 billion in debt, affecting 43 million borrowers, was a “major question.” It was too big to infer from ambiguous text. The Court essentially told agencies, including the Department of Education to stick to the core of what Congress authorized. If you want to do something major, make sure Congress plainly gave you that power. This doctrine is a cousin to nondelegation, which is a way for courts to rein in perceived overreach without outright saying the statute is unconstitutional.

For education administrators, the major questions doctrine could play out in areas like environmental rules affecting school operations, or health mandates for schools, but more directly through federal education policy shifts. The era of Chevron deference is facing pushback when the stakes are exceptionally high. Notably, Justice Gorsuch and others have expressed skepticism about giving unelected bureaucrats too much power to decide big policies, whereas Justice Kagan, in dissent in the loan case, warned that the Court’s use of this doctrine is overriding Congress’s decisions to delegate and could undermine effective governance. The tug-of-war between deference and judicial constraint continues to evolve.

One more facet: sometimes agencies choose not to act (e.g., not enforcing a certain rule or not investigating a complaint). The Supreme Court in Heckler v. Chaney (1985) held that an agency’s decision not to enforce is presumptively unreviewable, because agencies have discretion to allocate resources and are “better positioned” to evaluate their own enforcement priorities. This is relevant in education: if, say, the Office for Civil Rights (OCR) at the Department of Education decides to dismiss a complaint or not investigate certain allegations, courts usually won’t force them to (absent a specific legal requirement to act). However, if an agency gives a reason for not acting that’s based on belief of no authority, that might be reviewable, as in *Massachusetts v. EPA (2007)*, where the Supreme Court said the EPA could regulate greenhouse gases and its stated reluctance based on policy preferences was not a valid reason to avoid deciding if it had authority. In education, an analog might be: if OCR said “we won’t enforce Title IX’s gender discrimination provisions in certain contexts because we think the law doesn’t cover that,” a court could review that legal reasoning.

Seminal Cases in Administrative Law and Education

Administrative law is constantly evolving, and the past decade has seen significant changes that directly impact educational administration. In this section, we examine a few key developments: the swinging pendulum of Title IX regulations, battles over the scope of agency emergency powers as seen in COVID-19 responses, the resurgence of the major questions doctrine through cases like the student loan forgiveness decision, and ongoing debates about due process on campus (for both accused students and victims in misconduct cases). Each example shows the push-and-pull between agency action and legal limits, and highlights the importance for administrators to stay nimble and informed.

Title IX Regulations: Due Process vs. Civil Rights

Title IX is the federal law that prohibits sex discrimination in any educational program receiving federal funds. For years, one of the thorniest issues under Title IX has been how schools must handle allegations of sexual harassment and assault. This has been a flashpoint of administrative rulemaking and litigation, especially from 2011 onward, as different administrations have taken very different approaches.

In 2011, the Department of Education’s Office for Civil Rights (OCR) under the Obama administration issued a “Dear Colleague Letter” (sub-regulatory guidance) directing colleges to strengthen their response to sexual violence. It mandated using a “preponderance of the evidence” standard in campus hearings and discouraged cross-examination by the accused, among other things. This was guidance, not a formal rule, but it was enforced vigorously. Critics argued that these directives, while well-intentioned to protect victims, undermined the due process rights of students accused of misconduct. There was concern that some campuses were running inquisitorial, one-sided processes to avoid federal wrath, which could lead to unfair expulsions of (mostly) male students without adequate opportunity to defend themselves.

Fast-forward to 2017–2020, the Trump administration, led by Education Secretary Betsy DeVos, formally rescinded the 2011 guidance and undertook a notice-and-comment rulemaking to issue binding Title IX regulations. After receiving over 100,000 public comments, which reflected intense public interest, the Department of Education issued new Title IX regulations in May 2020, which took effect in August 2020. These 2020 Title IX regulations significantly expanded procedural protections in campus disciplinary proceedings for sexual harassment/assault. Colleges were required to hold live hearings at the postsecondary level, allow representatives for each party to cross-examine the other party and witnesses directly (through an advisor), and to provide access to all evidence collected. The definition of sexual harassment was also narrowed to align with Supreme Court precedent (misconduct must be “severe, pervasive, and objectively offensive” to qualify, excluding one-off minor incidents). These changes were celebrated by some as restoring fairness and criticized by others as discouraging victims from coming forward due to the prospect of cross-examination. For K–12 schools, the rules were a bit different. Elementary and secondary schools didn’t have to hold live adversarial hearings, but they still had to offer both parties the chance to submit questions and have them answered, among other rights.

Then came the Biden administration, which had a very different view. Biden’s administration argued that the 2020 rule went too far in favor of the accused and might chill reporting of sexual misconduct. In 2022, the Department of Education proposed new Title IX regulations to roll back some DeVos-era provisions, such as removing mandatory live hearings and cross-examination, expanding the definition of harassment, and adding protections for LGBTQ+ students, especially transgender students’ facility access. By 2023, the Department finalized these changes. However, this led to a wave of lawsuits by conservative state attorneys general who argued the Biden rule was unlawful and unconstitutional both for substance (e.g., claiming it infringed free speech by potentially punishing the use of wrong pronouns) and exceeded the Department’s statutory authority by expanding “sex” to gender identity without Congress’s clear directive.

In January 2025, a significant development occurred: a federal judge vacated the Biden administration’s Title IX regulations nationwide. The judge’s ruling found that the Biden Title IX overhaul suffered “significant legal infirmities,” including First Amendment problems (the rule could deem misuse of pronouns as harassment, which the court found an unconstitutional speech restriction) and that the Department exceeded its authority under Title IX (essentially a major questions, such as argument that such a sweeping change wasn’t clearly authorized by the statute). As a result, the country (at least at the moment of that decision) was thrown “back in time” to the 2020 regulations. Colleges and schools that had begun implementing the 2023 Biden rules now had to revert to the 2020 rules’ procedures, unless and until a higher court says otherwise.

Pandemic Measures and Emergency Powers in Education

The COVID-19 pandemic brought unprecedented challenges to schools and universities. A slew of administrative law issues. Education officials at all levels suddenly had to make high-stakes decisions: closing schools, moving classes online, and mandating masks or vaccines. Often, these decisions were made under broad emergency authorities or public health laws, rather than through the usual lengthy rulemaking process for obvious reasons as speed was essential during the pandemic. This tested the limits of administrative discretion and sparked legal challenges from parents, employees, and even states.

In many states, governors or state health departments issued orders closing schools or requiring masks. In some places, local school boards themselves had authority (or mandates) to require masks or vaccines for students and staff. These orders were frequently challenged as either exceeding authority or violating rights. By and large, courts in 2020 upheld temporary emergency measures (citing the exigency of the pandemic). But as the pandemic wore on, we saw more pushback. For instance, when some public universities mandated COVID-19 vaccines for students as a condition of enrollment, there were lawsuits. Most of them failed, as courts found universities (or the state via health laws) did have sufficient authority to protect public health, and that such requirements were not unduly invasive. However, where mandates conflicted with state law (like a state legislature banning schools from requiring masks), the legal outcomes varied. In Florida, the governor and legislature banned mask mandates in schools; some local districts rebelled, and litigation ensued over who had the authority. Generally, in a state vs local showdown, state law prevails since school districts are creatures of the state. Indeed, Florida ultimately stripped some local boards of powers if they imposed mask mandates contrary to state policy, and that largely stood, illustrating the hierarchical nature of administrative authority.

At the federal level, the Department of Education in the Biden administration took an unusual administrative step: it opened civil rights investigations into states that banned mask mandates, arguing that such bans might deny immunocompromised students access to safe in-person education (a novel use of disability discrimination law). This creative use of administrative enforcement shows how agencies can sometimes stretch their mandate to intervene in hot issues, although the legal footing (Title II of ADA or Section 504 of the Rehabilitation Act) was debatable. These investigations were mostly mooted when mask policies became optional as the pandemic eased.

Another significant area was federal funding conditions. The Elementary and Secondary School Emergency Relief (ESSER) funds, which were large amounts of money from Congress to help schools during COVID, came with certain requirements and encouraged certain policies (like maintaining services, using funds for safe reopening). Although not litigated as much, the distribution of those funds was an administrative feat, and state education agencies had to promulgate their own rules to sub-distribute to districts, sometimes sparking local controversy over allocation formulas.

For educational administrators, the lesson from the pandemic is that administrative authority in emergencies is broad but not limitless. It’s important to know the source of your power: Is it a health code? Is it the governor’s executive order? And equally, watch for when those emergency powers lapse. Many states after the first COVID wave reformed emergency statutes to limit governors or agencies from unilateral school closures or mandates beyond a certain period without legislative approval. Administrators should now have contingency plans that factor in the legal mechanism: any future emergency (natural disaster, epidemic, etc.) will involve interplay with state laws on emergency management and education codes. Also, the pandemic heightened awareness among parents of administrative decisions. Board meetings about masks or curricula became battlegrounds. It often required administrators to demonstrate the legal basis and rationale for their rules more transparently than ever before. This is a healthy development from a civic standpoint: it demands that administrators be able to articulate the evidence and logicbehind their policies. Many education leaders became quasi-public health officials overnight, and that meant learning a new domain of administrative law on the fly.

Student Loans and the Major Questions Doctrine

We discussed Biden v. Nebraska (2023) above as a case of the Supreme Court reining in an education-related agency action (student debt relief) via the major questions doctrine. In Biden v. Nebraska, six states sued to stop the one-time federal student loan cancellation program (up to $20,000 per borrower, roughly $400 billion total). The administration argued it had authority under the HEROES Act of 2003, which allows the Secretary of Education to “waive or modify” student aid provisions to ensure borrowers are not worse off in a national emergency. The states contended this wholesale cancellation far outstripped that provision. The Supreme Court agreed with the states: Chief Justice Roberts wrote that “waive or modify” did not encompass the power to cancel debt en masse. He reasoned that “modify” might allow minor adjustments, but not something that effectively created a whole new program. Furthermore, he underscored that such a vast program affecting millions was something Congress would speak clearly on if it intended; since Congress did not do so in the HEROES Act, the Department’s action was unlawful. Roberts explicitly invoked the “major questions doctrine.” When an agency asserts authority of major economic and political significance, courts demand clear congressional authorization. The dissent (Justice Kagan) argued that the majority was just substituting its policy view for that of the agency and Congress, and that Congress had in fact spoken in broad terms to give flexibility in emergencies. Justice Kagan warned that the Court’s approach undermines the separation of powers by curtailing Congress’s ability to delegate.