Is the Delegation Doctrine Really Dead?

Gundy v. United States: The Most Significant Delegation Doctrine Case in 85 Years 

Featuring remarks by Todd Gaziano, Director, Center for the Separation of Powers, Pacific Legal Foundation (PLF) and Counsel of record for PLF’s insightful amicus brief in Gundy

The nondelegation rule prohibits Congress from delegating its lawmaking power to another branch or entity. But what is the core lawmaking power that Congress cannot delegate, and what can it instruct regulatory agencies to fill in? The courts' role in enforcing the constitutional delegation line is even more hotly debated. Since 1789, the Supreme Court has struck down only two laws on nondelegation grounds, both in 1935. Gundy v. United States, which was argued on Oct. 2, 2018 could well be a third such ruling. The particular provision at issue, which directs the Attorney General to decide whether a federal sex registration law applies to sexual offenders convicted before the act's passage, may allow the Court to issue a narrow or broad ruling, but any opinion applying the nondelegation doctrine is likely to be a landmark ruling.

 

The Court's lax enforcement of its "intelligible principle" standard from 1928 has been criticized by Justice Thomas, then Judge Gorsuch and many others. Amici in Gundy have asked the Court to provide teeth to its intelligible principle standard or to adopt a textually-based standard that would more fully restore the delegation doctrine. PLF’s amicus brief offers an innovative approach the Court should consider. How far will the majority go to revive the nondelegation rule, and will concurring justices urge additional movement in the same direction? Or will the doctrine, now on life support, be further diminished?

 

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