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On Tuesday, October 1, the Supreme Court will hear oral argument in Gundy v. United States. As I explain in a Washington Times commentary, published on September 30, the outcome of the case, involving the moribund nondelegation doctrine, could have major separation of powers implications.
Here is the beginning of the commentary which explains why:
"Herman Gundy is asking the Court to vacate his conviction for failing to register as a sex offender under the Sex Offender and Registration Notification Act (SORNA). Of course Mr. Gundy has much at stake personally in the outcome of his case.
But so do we all, for the decision in Gundy may have broad implications for the way fundamental separation of powers principles are enforced. This is because Mr. Gundy claims SORNA violates the 'nondelegation doctrine' which, at least in theory, prohibits Congress from delegating to any other entity "legislative Powers," all of which the Constitution, by its terms, vests in Congress.
In purporting to limit delegation of Congress's legislative power to the executive branch, the nondelegation doctrine is central to maintaining the separation of powers at the core of the Founders' Constitution. For those, like me, who believe the structure of government is as important as the Bill of Rights in protecting citizens against abuses of government power and ensuring accountability for the actions of government officials, the extent to which Supreme Court enforces – or refrains from enforcing – the nondelegation doctrine is of great import.
And it is of import to the functioning of modern administrative state as well.”
The commentary concludes this way:
"By ruling that Congress must provide more specific directions in laws in order to avoid unconstitutional delegations of its authority, the court can promote democratic accountability while providing a welcome check on the exercise of unbridled discretion by too many agency bureaucrats."
Read the entire commentary, "Maintaining the Constitution's Separation of Powers," here.
