Gundy v. United States: Revisiting the Nondelegation Doctrine, or Not?

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The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine.  Instead, the Court upheld the federal government’s authority under the Sex Offender Registration and Notification Act (SORNA), a 2006 law requiring sex offenders to register with authorities in the state where they reside. A plurality of the Court held that the statute contains enough of an “intelligible principle” to guide the Attorney General’s decision-making regarding the statute’s application to past offenders to pass muster under the nondelegation doctrine.  It also decided that the statute was explicit enough in specifying its retroactive application to pre-SORNA offenders.  Justice Alito joined the Court’s four liberals, concurring in the judgment only.  He reasoned that “it would be freakish to single out the provision at issue here for special treatment” different from the Court’s approach since 1935. And he could not “say that the statute lacks a discernable standard that is adequate under” that prevailing approach. However, he also stated that he would be willing to join a Court majority in reconsidering that approach in a future case.  No such majority existed here, perhaps in part because Justice Kavanaugh did not participate in the case.

This teleforum will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and explore questions such as:

  • Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems?
  • Why didn’t the Court order new oral argument in the case with Justice Kavanaugh participating this time?
  • Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General?
  • Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived?

Featuring: 

Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Litigation Practice Group and Administrative Law & Regulation Practice Group, was recorded on Friday, June 21, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on “Gundy v. United States: Revisiting the Nondelegation Doctrine, or Not?” My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of our expert on today's call.

 

      Today we are very fortunate to have with us Mr. Mark Chenoweth, who is Executive Director and General Counsel for the New Civil Liberties Alliance. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for the case or for our speaker. Thank you very much for sharing with us today. Mark, the floor is yours.

 

Mark Chenoweth:  Thank you very much, Wes, and thank you everyone for joining today.  

 

      Yesterday, the United States Supreme Court handed down a 4-1-3 decision in Gundy v. United States upholding the Federal Government's authority under the Sex Offender Registration and Notification Act, a 2006 law requiring sex offenders to register with local authorities. I think that folks were looking at this decision as one that the Court might use to reinvigorate the nondelegation doctrine. That did not happen, to the disappointment of many, but what did happen? Well, in an opinion offered by Justice Kagan, a plurality of the Court decided that the statute provided sufficient direction to the Attorney General, a so-called "intelligible principle" in his application of the law, and it also held that the statute was explicit enough in specifying that it applies to pre-Act offenders.

 

The Court rejected convicted sex offender Herman Gundy's argument that in passing the law, Congress invested too much law-making authority to the Attorney General in violation of the nondelegation doctrine. As you probably know, that doctrine forbids Congress from assigning legislative powers to the Executive Branch because Article 1 of the Constitution vests all legislative power in the Legislative Branch.

 

Although Justice Alito concurred in the judgment issued by Justices Kagan, Breyer, Ginsburg, and Sotomayor, he concurred in the judgment only, not in the Court's opinion or reasoning. He stated that, "It would be freakish to single out the provision at issue here for special treatment" different from the Court's approach since 1935. And he could not say, "that the statute lacks a discernable standard that is adequate under that approach." However, he also stated that he would be willing to join a Court majority in reconsidering that post-1935 approach in a future case. That majority was missing here, at least in part, because Justice Kavanaugh was not yet seated when the Court heard the case last fall.

 

I'll come back to Justice Gorsuch's dissent, which was joined by The Chief Justice and Justice Thomas, here in a minute. But first, let's delve a bit further into the plurality opinion. We'd begin there by saying that even the plurality opinion concedes that there would be a nondelegation question, and it's interesting that it's a nondelegation question, not a nondelegation problem. If the statute were as broad a delegation as Gundy and the dissenters construe it to be, I don't know that there's any future mileage in that there's not much else in the plurality that suggests -- in fact, almost nothing else in the plurality suggests that any of those four justices think that the nondelegation doctrine needs to be reinvigorated in any way, shape, or form. But it's at least interesting to note that if they were presented with a statute as broad as the dissenters say that SORNA is, they would at least see a nondelegation question.

 

The reason why Justice Kagan does not see a problem here, or the reason why she finds an intelligible principle, is that she says that the statute tells the Attorney General to "specify the applicability" of the Act and that that does not mean whether or not the Act applies to pre-SORNA sexual offenders. It only means that the Attorney General should specify how the Act applies to pre-SORNA offenders, and she gets there using a variety of statutory interpretation techniques. She says, for example, that the Act's purpose says that it was meant to be "comprehensive." She also notes that the definition of sex offender in the statute versus someone who "was convicted," using the past tense, which she says suggests that the statute was definitely meant to apply to past offenders. And then she also cheekily refers to the legislative history saying that Justices -- this is a quote, "Justice Scalia's dissent in Reynolds thought that was gilding the lily. He had a point, but we can't resist." And she then gives some legislative history which is consistent with the majority's view of what the statute meant to do.

 

Having gone through this statutory interpretation technique, the plurality concludes that the statute requires the Attorney General to apply the statute to pre-SORNA offenders as soon as feasible, which is different from what the Court had decided previously in Reynolds where the government had claimed a relatively broad, almost unlimited discretion for the Attorney General in how to apply the statute. But here, Kagan has definitely constrained the application of the statute by the Attorney General and having thus interpreted the statute to constrain the Attorney General's discretion in applying the statute, the plurality decided that the nondelegation question was easy.

 

And to that extent, the plurality is right, having rewritten the statute to eliminate the nondelegation problem. It's not that surprising that the nondelegation problem goes away, at least largely if not entirely. But what Justice Kagan has done here is, I would submit, is to solve the nondelegation problems that the dissenters are worried about and that are inherent in the statute that Congress wrote while not seating any doctrinal ground regarding nondelegation. In fact, the plurality cites to several past Supreme Court decisions upholding famously broad delegations such as the one telling the Federal Communications Commission to regulate the airways "in the public interest."

 

So that brings us to the dissent and, as you might imagine, Justice Gorsuch's dissent went in a very different direction. Early on, he quotes the entire portion of the statue that applies to pre-SORNA offenders, and I will quote it in its entirety because it is very brief. "The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter and to prescribe rules for the registration of any such sex offender." And as Justice Gorsuch says, “Yes, that's it.” That is the entirety of the statute.

 

Justice Gorsuch takes issue with some of the statutory interpretation of the plurality opinion. I don't think that's the most interesting thing to walk through all the differences in how they construe the statute because there isn't a lot of text here to construe, really. It's more, I think, interesting to note that the dissent lays out what a nondelegation doctrine -- what a reinvigorated nondelegation doctrine, rather, might look like.

 

Gorsuch does note that the government's position changed from the Reynolds case where the government said that the AG's discretion was virtually inbounded. He talks about some of the many changes that have occurred in the relegations since enactment, how those regulations have applied to pre-SORNA offenders, the lack of notice that accompanies those many and frequent and quick changes in law. He notes that Congress could not reach consensus on the application of the law to pre-SORNA offenders and suggests that that might be why the statute was -- why Congress punted the statute to the Executive Branch so that even though they may have hoped for a comprehensive solution to the problem, the text of the statute itself didn't provide it.

 

And Gorsuch also noted that without respecting bicameralism, legislation risks becoming nothing more than the will of the current president. And Gorsuch is quick to note that the nondelegation is not about respecting the separation of powers for its own sake, but it's about protecting the people's decision to vest legislative decisions in the Congress. And then he provides what looks like a potential checklist for future majority decision. What would nondelegation -- what would a reinvigorated nondelegation doctrine look like?

 

I'll come back to that in just a minute, but there's an interesting sort of discursive disquisition on the intelligible principle doctrine, which as Gorsuch points out dates from the late 1920s, comes from an opinion written by Chief Justice Taft. And I think maybe the most interesting -- the most salient point that Gorsuch makes is that this phrase, "intelligible principle," at the time that it was used back in the late 1920s, no one thought that it was working any kind of revolution in constitutional interpretation.

 

And, in fact, as Gorsuch points out, when a few years later, the Supreme Court used the nondelegation doctrine to strike down congregational statutes in both Schechter Poultry and Panama Refining, no one thought that the intelligible principle phrase somehow prevented the nondelegation doctrine from applying in those cases. So he traces how subsequent post-1935 cases started using this phrase in a way that allowed the Court to uphold statutes that were far less specific in what they directed the Executive Branch to do. And I think that the history that he provides there is both very interesting and worth reading in its entirety for folks who are interested in this subject.

 

Back to the potential checklist for future majority, Gorsuch talks about the kinds of considerations that go into deciding whether there is a permissible delegation or impermissible delegation. And he mentions things like the fact that Congress might assign fact-finding functions to the Executive Branch, and that if Congress were to have certain policies hinge on particular fact-finding, that that might be perfectly fine. Or if Congress was not as specific as it ordinarily would need to be but it was dealing with subject matter that was squarely within the executive function, so something like foreign policy, that in that case that allowing the Executive Branch to fill in more details and not being quite as specific could be permissible there, which I think is interesting. And he also talks about the fact that if Congress is -- well, and maybe this is just saying the same thing, but if Congress is not just -- if Congress is establishing the policy and making a clear policy determination in a way that the details only being filled in by the Executive Branch truly are details and that no policy-making decisions are being left to the Executive Branch, then that might be okay.

 

The other interesting thing that Gorsuch talks about is how the Court has used different strategies in lieu of the nondelegation doctrine. He mentions the marked increase in void-for-vagueness cases as well as the more recent major questions doctrine and makes, I think, a relatively convincing case that hundreds of void-for-vagueness cases that we've had in the post-1935 era are something of a substitute for the nondelegation doctrine, that if Congress is not detailed enough to where it would fail under the nondelegation doctrine, it might also be vague enough that it doesn't survive due process challenges for the people to whom the law applies. And he suggests that that's why we're seeing so many more void-for-vagueness cases.

 

And the same with the more recent major questions doctrine. This is the idea that we saw in some of the Obamacare cases and so forth that Congress is not presumed that Congress is going to leave major questions or major policy decisions up to the Executive Branch so that if there's something that is left undone or unstated in the statute, then that has to come back to Congress. It can't be something that's resolved by the Executive Branch. And so, again, Gorsuch suggests that this major questions doctrine is taking the place of, or doing the work of what the nondelegation doctrine ought to be doing.

 

Of course, Justice Kagan really supplied another strategy in the plurality opinion here by re-reading the statute to read out any nondelegation concerns by effectively rewriting the statute, which is not in the Court's power to do. The Court avoids striking down the statute as a violation of the nondelegation doctrine, which it would've been within the Court's legitimate power to do. But if I were going to put this more charitably, I might say that Justice Kagan has created a sub silentio, a very strong cannon of constitutional avoidance, by construing a statute not to contain an unconstitutionally broad delegation to the Attorney General. So I do think there's a bit of a silver lining there in the sense that even Kagan and the plurality didn't say, oh yes, this is a super broad delegation and we uphold it. It said, no, no, no, this is not a super broad delegation and therefore, we uphold it, which is certainly better than what the other alternative could've been.

 

Let me come now to some of the questions that were mentioned in the blurb advertising of the teleforum. One of the questions was whether the 4-1-3 decision here just leaves the status quo intact or whether it will embolden lower courts to identify more nondelegation problems. I think the answer to that is that it will do both, that it will leave -- it does largely leave the status quo intact. I don't think that this decision does much, if anything, to sort of weaken the nondelegation doctrine further. It leaves the status quo intact, but I think it also will embolden some jurists to find nondelegation problems, particularly alongside void-for-vagueness or major questions doctrine findings or other separation of powers policing methods or doctrines because the dissents and Justice Alito really did announce as clearly as they could, I mean the bat signal was out, that the Court is looking for nondelegation doctrine cases and that a future majority might be willing to consider those. So I think that the answer is that it leaves the status quo intact for now but stay tuned.

 

Why didn't the Court just order new oral argument in the case with Justice Kavanaugh participating this time? That's hard to say. I would love to hear if any of you have theories on that, but one theory is that Justice Kavanaugh would not have supplied a fifth vote. There isn't any evidence of that, so I think that's just sheer speculation.

 

Another is that there were vehicle problems with this case, for some reason, in the eyes of Justice Alito or some of the other dissenters. Again, no one has written about any of those kinds of problems so it's hard to put much stock in that answer.

 

Another is that Justice Alito, the former prosecutor, did not want to strike down this criminal statute. Again, sheer speculation, there's nothing to suggest that if there had been a majority here that he wouldn't have been willing to do so in this context. So I don't really know why the Court didn’t order new oral argument. It did so in one of the other cases that was handed down today that Justice Kavanaugh was not originally there for oral argument for, and they reheard the case and Justice Kavanaugh joined the majority today. So there's an unanswered question there about why that didn't happen in Gundy.

 

Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General? I think so. How could it not? Once Congress gets away with something, it tends to do it again. That said, it may well try to offer a bit more direction in future delegations to try to come within at least one of the categories that Justice Gorsuch specified as something that might make a delegation permissible.

 

And then, one other question is do Justice Alito's concurrence and the strong dissent from Justice Gorsuch, joined by The Chief Justice and Justice Thomas, signal that the nondelegation doctrine will be revived? And that's where optimists have to hang their hat. That would require folks to believe that first of all, Alito is serious about going along with the future majority. Second, that so is Kavanaugh. Third, that you wouldn’t lose any of the other three dissenting justices here in a case that was, say, outside the criminal context which I would think would be an easier context in which to find nondelegation or rather an easier context in which to find that a statute was in violation of the nondelegation doctrine. And we just don't know the answers to those, but, as they say, that's where optimists have to hang their hat.

 

Just a few more points to make, and then I'll open this up for questions.

 

The dissent latched onto some useful language. For one, it did refer to the administrative state as a thing. And I don’t know that this is the very first time that the Court has done this, but I thought it was noteworthy that the Court did use that language in this context. Justice Gorsuch also used the term divest rather than delegate on more than one occasion in the dissent which is something that the New Civil Liberties Alliance's amicus brief asked the Court to do. We think that that change in the vocabulary is significant in that the term delegation is misleading because a delegation implies an easily revocable transfer. But in reality, when Congress delegates or divests legislative power to the Executive Branch, it's really quite hard for it to take it back because if it wants to do so with new legislation, that new legislation can be vetoed by the President. So the idea that there's a delegation here in the sense that we usually use that word is quite misleading and it's better to talk about from a constitutional theory standpoint and using the actual language that the Constitution itself uses, it's better to say divest.

 

And then, like I say, divest is the term the Constitution uses in the vesting clauses, and the people gave the legislative power to Congress so that divesting that power is actually what the Constitution forbids. We were also delighted here at the New Civil Liberties Alliance to see the dissent site not only our founder Professor Hamburger but also Janice Rogers Brown, Chairmen of the Board of Advisors here, and some of the academics on our Board like Gary Lawson and David Schoenbrod so always happy to see that.

 

With that, I think, Wes, that we can open it up for questions and other comments about the Gundy case.

 

Wesley Hodges:  Fantastic. Well, Mark, thank you so much for your remarks. It looks like we do have one question so far from the audience. Here's our first caller of the day.

 

Caller 1:  Hi. Thank you for that. That was very informative. I just -- one question. What kind of sense do we have as to what Justice Kavanaugh might -- what position he may take in a future case like this? And then, what are the prospects for another one of these being taken up on cert?

 

Mark Chenoweth:  Let me take the second question first, if I can. I think that's a great question. I think that, I guess I'd say two things about that. First, I think the prospects are very good that if another case like this comes up for cert that you would have four votes to grant cert in that future case. I think it was noteworthy that there were several questions presented in this case to the Court, and the only question presented in the Cert Petition from Gundy that was granted was the question about whether or not this was a violation of the nondelegation doctrine. And so I think that's a very clear signal that there are four justices on the Court who are interested in this question and who are wanting to delve further into the doctrine. And whether that means reviving it or reinvigorating it to the extent that some folks might like to see, I think is still an open question. But the fact that, to your point, will they grant cert in another case? I definitely think there's enough interest that we could see that happen.

 

      That said, I think sometimes that the Supreme Court is way overly optimistic about how easy it is to find and generate these cases. The New Civil Liberties Alliance will certainly do everything within our power to find and locate a suitable case to tee up for the justices' consideration, and there certainly are a fair number of federal statutes out there that are broad enough that one could -- where the delegations are broad enough that one could plausibly allege a nondelegation violation. But you still have to have a plaintiff who's willing to fight. You have to have standing. You have to have, in most of these cases, that you'll probably have to be in as applied challenge as opposed to a facial challenge to the statute. So there are a lot of obstacles in the way of teeing something up.

 

So, I guess, maybe I should say I'm not aware of any cases that are currently in the pipeline. If you are aware of any, please let me know. We would certainly be interested in following those, but I'm not aware of any, and I think it'll be a little harder than maybe the justices realize to tee up one of these cases in short order. So I do think it'll come back to the Court, but it might be more like three or four terms rather than one or two terms before it does return to the Court.

 

      You asked about Justice Kavanaugh, what do we know there? Well, we know that Justice Kavanaugh is a fan of the major questions doctrine, and we know that he has spoken eloquently in that area about the need to leave major questions up to Congress. I have not done the research into whether he had anything to say about the nondelegation doctrine when he was on the DC Circuit. One of my colleagues here did do some research into Justice Kavanaugh but I didn't -- I probably should have asked that question before I jumped on the call today but I didn't. So I don't know for sure. I think the fact that they didn't set it for re-argument makes me a little bit worried, I guess, is where I would leave that.

 

Wesley Hodges:  Well, caller, thank you so much for your question. We do have just one more question in the que. Here's our next caller.

 

Caller 2:  Hi. Thanks so much for your comments. I think, perhaps, the most prominent argument against the nondelegation doctrine is that because there's some degree of discretion, it always inheres in enforcing the laws or applying the laws. There is no administrable way of distinguishing between an impermissible delegation on the one hand and permissible, indeed, required enforcement or application of the law on the other hand. So for someone who wants to argue that the nondelegation doctrine is worth reviving, what is the best answer that counter-arguments what is the administrable test?

 

Mark Chenoweth:  Thank you. I think that's a great question, and some of the amicus briefs that were filed in this case offered potential answers to that question. And so, if you go back and look at some of the amicus briefs that were filed here, you can get some complete answers to that question.

 

And, certainly, there were others that invited the Court to -- if it was going to stick with the intelligible principle idea to at least put more teeth into that principle and let people know that not everything will pass muster under that rubric. I do think that Justice Gorsuch intended to offer some answer to that question in the portion of his decision where he goes into the different kinds of considerations that you have to take into account, such as whether it's Executive Branch -- traditional Executive Branch topic that Congress is legislating about, such as whether or not the statute is assigning fact-finding responsibility to the Executive Branch, and those sorts of things. So I think that there's probably more work to be done in a future majority opinion than Gorsuch did here, but he did lend some answers to that that I think are worth folks kicking around, thinking about, maybe adding to as if they are in the camp that you mention of folks who would like to see a nondelegation doctrine revived.

 

Wesley Hodges:  Thank you, caller. We do have another question in the que. Here's our next caller.

 

Caller 3:  Hi. Last year the Eighth Circuit Court of Appeals overturned a ruling of District Judge Donovan Frank's regarding the Minnesota Sexual Offender Program. And I'm not sure that that's related exactly to this case, but I wanted to ask just to see if it is because there were several cases that the Court declined cert on last year, as well. This is regarding civil commitment for sexual offenders who cannot be released but have fulfilled a prison term. I know, specifically, that doesn't necessarily deal with the nondelegation doctrine. Is that issue at play here in, perhaps, Judge Alito's thinking on this case or are other justices' thinking? Thank you.

 

Mark Chenoweth:  So I'm afraid I don't really know the answer to that question. It sounds like if what you're saying is that the -- you're talking about the state statute in Minnesota, then I don't think that this decision would have any application there. I do think that one of the things that Congress was concerned with and looked at when it passed this statute was the fact that, and one of the reasons why Congress had difficulty reaching any consensus on whether to apply the Sexual Offender Registration and Notification Act to offenders who are already in prison, is that there were a lot of different state statutes already in place.

 

I think every state and the District of Columbia, as of 2006, already had state statutes in place, and some of the opposition to the federal statute had to do with the fact that, for example, there could've been folks out there who had already registered under a state system, had already fulfilled whatever period of time, 10 years or 15 years or whatever, they had to continue to register under the state statute, and now, they were going to potentially be swept into the new federal statute even though they had been left out of the state statute. So there were some issues like that that were of concern, but I just don't know about the civil commitment or the particular, the civil commitment on offenders who already finished their sentences. And I don't know about the Minnesota statute in particular. I'm sorry about that.

 

Wesley Hodges:  Thank you, caller. Here's one question from the audience. Caller, you are up.

 

Paul Avelar:  Hi, this is Paul Avelar from the Institute for Justice. I'm curious as to whether you think that this decision lends any insights to the Court's resolution of the still pending Kisor case which is asking to overrule Auer.

 

Mark Chenoweth:  That's a good question. So we've been calling it the Kisor case here, and, I guess, maybe you know, I don't know for sure whether its “Keezer” or “Kisor”, but in any event, the big difference between this case and the Kisor case is that Justice Kavanaugh was on the bench for oral argument in Kisor. And so there was a full complement of nine justices there, and so I suspect that whatever the reason is for the 4-1-3 split here where they didn't set it for re-argument, and they didn't -- and Justice Alito wasn't willing to see a 4 to 4 decision.

 

And, by the way, maybe I should've mentioned this. If Justice Alito had not done what he did, if he had not concurred with the majority and in judgment only, not in the reasoning or in the opinion, had he not done that, and if he had gone with the dissenters, that would have left it as a 4 to 4 decision and under Court tradition, if it's a 4 to 4 split, then they don't issue opinions and the lower court judgment would have stood in its place. And so now it could be that that figured into Justice Alito's calculation as well. It could be that he wanted to see Justice Gorsuch's defense out there percolating to help generate more cases down the road. And again, that whole kind of calculus isn't at work in the Kisor case because you have all nine justices sitting there.

 

Now, I am optimistic in terms of how Kisor will come out. The oral argument Justice Kavanaugh and The Chief Justice were maybe the two that were looked at as swing votes because they asked a lot of questions of both sides and were seemed to be really trying to poke arguments in both sides of the case. But I'll be a bit surprised if we don't see it at least five votes to curb Auer deference in some way. Maybe not take it out entirely but obviously, I would prefer to see it taken out entirely.

 

Wesley Hodges:  Excellent, thank you for the question. All right, looks like we do have another question. Caller, you are up.

 

David Schoenbrod:  Hi, Mark. This is David Schoenbrod, very helpful presentation. Thank you. Quick question, do you think there's any chance that, some way or another, to get one of those four justices on the plurality to be more sympathetic to the delegation challenge?

 

Mark Chenoweth:  That's a great question, David. First of all, thank you for your terrific scholarship in this area. I truly believe that if it hadn't been for the state-work that folks like you have done on this issue that we might not have seen interest on the part of the justices in revisiting this topic, so thank you very much for that work.

 

      Obviously, it's hard to say the extent to which Justices Breyer and Ginsburg and Sotomayor might've -- feelings might be different from what is said in the plurality. We don't have insight into the edits that they requested or what have you, but I do think that there's some chance that Justice Kagan could be reached. I guess your question was more along the lines of what can be done or how can we reach, not are they reachable.

 

There's one thing that Justice Gorsuch says in the dissent that I think is very important. And he says that respecting the nondelegation doctrine does not say anything about the proper size and scope of government. And I think that's very important because I think that there's a view out there that the nondelegation doctrine is all about trying to cut down the size of government or restrict what Congress can do. And he frames it as a procedural kind of concern, that it's not about what Congress can or can't do from a policy matter, it's just the fact that Congress has to do it and has to own what it does, essentially. It can't just turn it over to the Attorney General or some other Executive Branch official to do the Congress's dirty work for it.

 

And I think to the extent that we could get one or more of the justices who were in the Gundy plurality to recognize that fact, to recognize that the nondelegation doctrine doesn't say anything about the proper size and scope of government. It really is just about making sure that Congress is doing the legislating and that the Executive Branch isn't infringing on that territory. And that to the extent that Congress can regulate to its heart's content if it wants to, as long as it's able to satisfy the constitutional requirements of bicameralism and presentment to the president. The problem is that when it does these shortcuts and doesn't have bicameralism and doesn't have presentment to the president, it's easier and faster.

 

And so I think Congress has gotten into bad habits there, and I think that the folks on the Court, like Justice Gorsuch, who want to try to break Congress of that habit, because of what their, maybe, ideological predilections are in other areas, folks assume that this interest in reinvigorating the nondelegation doctrine is about restricting the quantity of legislation. But I really think that's just a byproduct. I don't think that's the goal. I think the goal was to force the Congress to go through its constitutional paces. And perhaps, if Justice Kagan were persuaded that that was true, that the nondelegation doctrine was maybe a little less ambitious than steered to be by folks who share her perspective on other constitutional questions, maybe she would be gettable, but that's the best I can offer, David.

 

Wesley Hodges:  Thank you, Professor. We appreciate your comments.

 

So, Mark, I don't see any more questions from the audience. Do you have any closing thoughts or sentiments for us?

 

Mark Chenoweth:  Yeah. Just one closing thought which is Justice Gorsuch talks about all the other ways in which the Court enforces separation of powers and he talks about the -- he says, we've not hesitated to prevent Congress from conferring the government's judicial power on entities outside Article 3. He talks about the line-item veto and the fact that the Court has forbidden the executive from encroaching on legislative functions that way. He says that the Court has prevented Congress from delegating its collective legislative power to a single house. That's the INS v. Chadha case. He says we policed legislative efforts to control Executive Branch officials and he cites to Free Enterprise Fund, the public company counting oversight forward in Lucia v. SEC.

 

And so he -- then he says that when the separation of powers is at stake, we don't just throw up our hands. He says, "In all of these areas, we recognize that abdication is not part of the constitutional design and abdication here would be no more appropriate to leave this aspect of the constitutional structure alone, undefended would serve only to accelerate the flight of power from the legislative to the executive branch, turning the latter into a vortex of authority that was constitutionally reserved for the people's representatives in order to protect their liberties." And I think I'll just let Justice Gorsuch have the last word there.

 

Wesley Hodges:  Excellent. Well, on behalf of The Federalist Society, I would like to thank you, Mark, for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us for this call. We are now adjourned.

 

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