Nondelegation After Gundy

While the Supreme Court repeatedly has proclaimed that Congress cannot delegate its law-making power, in the 90+ years since it announced its “intelligible principle” test, it only twice has found that assignments of power to make legally binding rules violated that constraint. This past Term, in Gundy v. United States, Justices Gorsuch, Thomas, and Chief Justice Roberts, in dissent, voted to invalidate a commitment of authority to the Attorney General as delegating law-making power, condemning the “intelligible principle” test in the process. Justice Alito also declared himself open to reexamining that test. Justice Kavanaugh did not take part in the case. Where does this leave the law? Will a new, stronger non-delegation doctrine emerge? Will it dramatically undercut the legal underpinning for the current, expansive administrative state?  These questions, fundamental to what the shape of government will be in the decades ahead, will be the debated at the panel titled “Nondelegation after Gundy — Are We Waiting for Godot?” – at the Federalist Society’s National Lawyers Convention, Thursday, November 14, in the Mayflower Hotel’s East Room, 3:30 pm to 5:00 pm. We hope to have you join us in-person or via live stream on the Federalist Society's website.

Participating Panelists:

• Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law; President, Cass & Associates, PC
• Prof. David Schoenbrod, Trustee Professor of Law, New York Law School
• Prof. Kristin E. Hickman, Distinguished McKnight University Professor; Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School
• Prof. Alan Morrison, Lerner Family Associate Dean, Public Interest and Public Service Law and Professorial Lecturer in Law, George Washington University Law School
• Moderator: Hon. Ryan D. Nelson, Judge, United States Court of Appeals, Ninth Circuit