Litigation Update: Gundy v. U.S.

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Last term in Gundy v. U.S., without Justice Kavanaugh the Court was split between a restoration of a substantial limitation on the administrative state and the status quo. In this case, as Justice Gorsuch described it, Congress gave “the nation’s chief prosecutor… the power to write his own criminal code governing the lives of a half-million citizens.” This case has enormous implications for how much power federal bureaucrats can be given by Congress. The panelists will discuss this case and a potential future without such extensive power for federal agencies.

Featuring:

Devin Watkins, Attorney, Competitive Enterprise Institute

Moderator: Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Litigation Practice Group, was recorded on Wednesday, October 9, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a "Litigation Update on Gundy v. United States." My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

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

 

      Today, we are fortunate to have with us Devin Watkins, who is an Attorney at the Competitive Enterprise Institute, who filed an amicus brief in this case. We also have Professor Christopher Walker, who is a Professor of Law at The Ohio State University Moritz College of Law. After our speakers give their opening remarks, we will then go to audience Q&A. Thank you both for sharing with us today. Professor, the floor is yours.

 

Prof. Christopher Walker:  Thanks so much for having us on this. Devin and I are going to have a fun time today talking about updates with Gundy v. United States.

 

As those that follow the Supreme Court know, there was a rehearing petition filed in Gundy this summer, and the Supreme Court this week relisted it, which means that -- well, we don't actually know entirely what it means, and Devin and I will talk about that a little more as we go, but it suggests that the Court is at least thinking more about it than just denying the rehearing petition outright.

 

It's not the normal move that the Court makes, and so we decided to do this litigation update to talk about that. And how it's going to be structured is I'll just give a really brief introduction of what the nondelegation doctrine is because that's what Gundy's about, and then Devin's going to do a much deeper dive into the case and the opinion. And then we'll do some back and forth about what we think about the rehearing petition prospects and about nondelegation challenges more generally going forward.

 

So for those that aren't administrative law geeks on the call or constitutional separation of power geeks that are on the call, Article I of the Constitution says that all legislative powers shall be granted in a Congress of the United States. The Supreme Court has interpreted that to mean that Congress cannot delegate legislative powers to other branches of government or to anyone else.

 

They said that back in the 1930s, and they struck down two cases -- two statutes based on nondelegation grounds. Since then, the Supreme Court has not struck down any other statutes based on nondelegation grounds. They've articulated that as long as federal agencies are given an intelligible principle from Congress in the statute that clearly delineates the general policy, the agency can apply it, and that's enough.

 

Gundy, though, gave us a chance to see a nondelegation challenge again before the Court, and I think many of us thought that if there's going to be a reinvigoration of the nondelegation doctrine, Gundy seemed like a pretty good vehicle to do that. So I guess I'll turn it over to Devin to talk a little bit about what Gundy's about and how the Court set up the case last term.

 

Devin Watkins:  Well, Gundy started in 2005 when he was convicted of sexual assault while he had a suspended federal sentence in a different case. So after he was convicted, SORNA was passed by Congress, requiring registration of sex offenders when they travel interstate. And after he served his state sentence, he was transferred into federal custody and then the federal government transferred him from Pennsylvania into New York.

 

      While in federal custody, he had moved interstate, and so the question was because he had failed to register while he was in federal custody, did that violate SORNA? The district court found that it did not because he wasn't required to register as a sex offender because he hadn't yet finished serving his sentence.

 

      The Second Circuit reversed that and said that despite the fact that he was in federal custody at the time, he was still required to register as a sex offender. Eventually, it went back down and came back up again. He had raised the fact of the nondelegation doctrine, however he was foreclosed by a different case in the Second Circuit. And so the Second Circuit basically dismissed his argument as meritless in a single line.

     

      It then went up to the Supreme Court. He raised about five issues, but only one of those issues, the question was granted by the Court, that on nondelegation doctrine. In this case, SORNA was passed and when it was passed, Congress knew exactly what it wanted to do for future sex offenders. But as to people who had been convicted prior to SORNA being enacted, Congress didn't know or couldn't decide or for whatever reason decided that the attorney general should be deciding these kinds of questions.

 

      And so there's basically one line that says the attorney general shall decide these kind of questions, write regulations for these past sex offenders. And so the question before the Court was was this a[n] entirely -- the attorney general could do whatever he wanted? Or is there some type of limiting factor or intelligible principle that it had previously been called?

 

      So the Court split on whether there was an intelligible principle or not. According to four of the justices, led by Justice Kagan, there was an intelligible principle, although the specific line that delegates the power to the attorney general doesn't mention any kind of limiting principle.

 

      If you look at the whole act in general and its purposes and the fact that it's supposed to be comprehensive, they can intuit some kind of implicit guidance to what the attorney general was supposed to do. And therefore, there isn't a nondelegation problem.

 

      Now, the more interesting fact was what happened with the dissent, in Justice Gorsuch's dissent. Now, we know that at some point, there was a different majority going on. There was an actual majority ready to strike down the statute. And we know that from reporting by CNN that had talked about this and said that there was a majority all the way up until the very last month of the Supreme Court's term ready to strike down a statute and then something changed.

 

      We suspect -- or at least I suspect, based on oral argument, that Justice Sotomayor was running the majority opinion. She was not the -- she was the only justice that hadn't been assigned a case for the October sitting [inaudible 6:13]. Supreme Court likes to balance majority opinions and based on oral argument, it seemed likely that Justice Gorsuch was joining her in some type of narrow opinion related only maybe to the Department of Justice and maybe only in criminal matters, something like that.

 

      It may have been those limitations on not applying to other agencies or only in criminal matters or something, but for whatever reason, Justice Gorsuch and Justice Sotomayor couldn't agree on their opinion, and whatever kind of coalition had formed broke down. And so Justice Kagan wrote the majority opinion for the Liberal wing of the Court, and Justice Gorsuch mostly wrote the opinion for the Conservative wing of the Court.

 

      The only interesting opinion other than those was Justice Alito's. So Justice Alito wrote a very short little opinion in which he said, basically, that he appears to mostly agree with Gorsuch's opinion, but the fact that there wasn't a majority of the Court willing to overturn that meant to him that he was willing to go along with the judgment of the Liberal wing of the Court and uphold it in this case, but should there be a majority that was willing to overturn this prior case law and reinvigorate the nondelegation doctrine, that he would be interested in that.

     

      Some have questioned why exactly he did this. I tend to be of the opinion that if he had joined explicitly with Justice Gorsuch's opinion, the tradition of the Court would've been to have a single-lying issue that says the judgment below is affirmed by an equally divided court. They may not have had five votes to order re-argument in this new term because Justice Kavanaugh was not participating in that case because he wasn't yet on the Court when it was first heard for oral argument. So they would've split 4-4.

 

      But the way that Justice Alito did it by joining the judgment but not the opinion of the left-wing of the Court, it made it so that all of the opinions were published, including Justice Gorsuch's dissent. And Justice Gorsuch's dissent is quite amazing. It really changes fundamentally the way that our government works and the way that the power distribution occurs compared to the modern administrative state.

 

      So a lot of times, you have these intelligible principles that are rather vague. They go out there and they say, "Go do good things," or "Go make clean water," but they don't deal with the nitty gritty of what the compromises and the details and what kind of rules do people have to live under? And Justice Gorsuch's dissent says these kind of policy decisions, those that make the rules for private individuals and how they have to live their lives, these are the kinds of things that Congress has to decide. They can't just be delegated off to some administrative agency that doesn't have to sit for election. These are the kind of things that our elected officials are supposed to decide for us.

 

      We had written a[n] amicus brief arguing very similar conclusions. We tried to ground our opinion in the Constitution and as a textual matter. Obviously, we have Article I Section 1 Clause 1. It says all legislative powers are vested in the Congress or all powers herein granted. That isn't necessarily enough because even if the power is given to Congress, what's to say that Congress can't then hand it off to someone else?

 

      And so they need maybe just a little bit more to say why vesting it into Congress means they can't then hand off the decision to someone else, that it doesn't just start with Congress, but it has to end with Congress. And for this, we relied on the common law of agency, that when a person delegates a power to another person, if that power that was being delegated involves discretion and judgment and wisdom, these are the kind of things we're not allowed at common law to hand off to a third-party.

 

      And Justice Story had given a Latin phrase, delegata potestas non potest delegari. Now, I'm sure I'm butchering the Latin; I'm not an expert in Latin. But the Latin phrase is important, because the Latin phrase has been repeated repeatedly by all the state supreme courts that talk about the nondelegation doctrine.

 

      And then it's repeated by the Supreme Court in J.W. Hampton, which is the key case for the nondelegation doctrine, the one relied upon even by the Liberal wing of the Court as to the intelligible principle. And this phrase is a phrase that comes directly from Justice Story's commentaries on the law of agency.

 

      It directly links the common law of agency with the nondelegation doctrine and says basically, if you read the Supreme Court in that opinion, that the nondelegation doctrine derives from the common law of agency. But then this gives you what the exceptions are: how far can Congress delegate and what can't it delegate? And the common law of agency said there's an exception for ministerial acts. Those acts that don't have judgment or opinion or wisdom that has to be done by the person you're giving that power to.

 

So for instance, Congress could delegate the question of fact. This was actually done, and this was raised by the Court in the Brig Aurora case, The Cargo of the Brig Aurora case. This was an extremely early case where the nondelegation doctrine was first raised. And the government at the time said this doesn’t violate that problem because it only deals with the question of fact. And although the Supreme Court didn't specify why it decided that, it decided it in the government's favor, presumably on the arguments that the government had raised.

 

      And then this came up again and again in future cases where the Supreme Court talked about the nondelegation doctrine. And every time, they focused on the fact that this was a question of fact that was being delegated by Congress to the Executive. And so that is fundamentally different than the kind of question of law as to what rules people in society have to live under and so making that kind of distinction which derives directly, in our opinion, from the common law of agency.

 

Gorsuch actually followed our conclusions of where the doctrine reached but didn't necessarily talk about the common law of agency. He didn't reject it, but he didn't accept it. I think they're probably still mulling over that a bit. But the conclusions, the fact that J.W. Hampton was rightly decided—this was the intelligible principle test—it had just been misconstrued by later Supreme Court opinions.

 

      This is in Justice Gorsuch's opinion, and that means the intelligible principle test meant something more than go do clean water or go do some vague thing. It meant that without the kind of judgment or wisdom or discretion, you have to be able to take these facts about the world and determine whether it's true or false. That is the kind of intelligible principle that the Supreme Court was talking about.

 

      But returning to that kind of world, a world in which Congress can't just say, "Go do good things," to a government agency and then the government agency has the power to do whatever they want. That kind of limitation on federal agency power is something that really hasn't been done for the last 80 years or so, since the New Deal.

 

      And so we'd have to see, if Justice Gorsuch's opinion became the majority opinion, there are a lot of statutes and a lot of regulations that may not fly under that kind of regime that exists today and are currently being enforced. But there are a lot of statutes and a lot of regulations that would apply.

 

One common example I give is the Endangered Species Act. If you are specifying -- if Congress specifies how many animals or how to determine what an endangered species is and the question is how many of those animals are there? That's a question of fact. The administrative agency can go out in the world and survey how many animals there are and determine that factual question. And then there can be consequences for that, but those consequences have to be setup by Congress.

 

And so that is quite a bit different than a lot of the way that it's setup right now. But it presents a very clear dividing line, one that judges can easily administer. A lot of times, the big problem with nondelegation doctrine in the past has been it's rather mushy and hard to determine when the line is too far to be able to delegate. And so this kind of distinction, question of law or question of fact, is the kind of thing that judges do every day. They have to decide what's sent to a jury and what can be decided by the judge.

 

And so these are the kind of questions that we think are very easily justiciable by federal judges, which is an important thing to consider.

 

Prof. Christopher Walker:  I want to get, maybe, back to this and dive a little bit deeper, but first, let's talk a little bit about what's happening now. So we have, as I mentioned at the outset, a petition for rehearing was filed. As you mentioned, Justice Kavanaugh did not participate in the case, so it was a 4-1-3 decision with Justice Alito concurring in the judgment and, ultimately, upholding the statute.

 

      So what's your take on the Supreme Court deciding to relist the rehearing petitions this week?

 

Devin Watkins:  Well, I'm hopeful that their thinking carefully about this. I had actually asked the federal defender who was representing Gundy to file the petition for rehearing as I thought there was a good chance that the Supreme Court might grant this petition for rehearing.

 

      Now, a good chance for a petition for rehearing is like 30 percent. So it still may or may not happen. This definitely improves their odds, but a normal petition for rehearing has a 1 percent or less chance of being granted. Most petitions for rehearing are never granted because the Supreme Court has already considered this once and so given six months' time, they're not just going to change their minds.

 

      But this is a rare case because Kavanaugh wasn't on the Court at the time, and because the Court split so closely, it was practically a 4-4 decision. And given those circumstances, I think that there's a better chance than normal for rehearing petition.

 

Prof. Christopher Walker:  As a matter of procedure, the way that I understand the Supreme Court rules is that if they are accepting what they call extraordinary circumstances, and I think it's Rule 44, they would order a response first, right? So I guess the next big signal will be if they order response. If I had to guess what they're doing is someone's writing a statement regarding the denial for rehearing and that someone might actually be Justice Kavanaugh, who didn't have a chance to explain his approach on it before. But it will be interesting to see how many times it's relisted and --

 

Devin Watkins:  He's going to do a dissent from the denial of rehearing as Justice Kavanaugh?

 

Prof. Christopher Walker:  Wild at guessing, right? I don't know if I'd call it a dissent, I could imagine just being a statement regarding the denial, and it might look something similar to Justice Alito's concurrence to the judgment where he expresses an interest in the appropriate case of reinvigorating the nondelegation doctrine. But I've got nothing to support that other than -- I'm trying to figure out who else -- I mean, everyone else had a chance to say something already and I'm not as bullish as you are that the Court's actually going to grant rehearing, especially since they haven't ordered a response yet. I would've guessed that would've been the next move, so that's where I would guess that the Court may be going with that.

 

Devin Watkins:  I think some of these times, the Court or at least members of the Court like to suss out their fellow justices and figure out where they are before they decide where their votes are. This was the long conference, so they have, I think it was 700 and some cases to decide on that one day, and so they may have just said, "We're close on this issue. I don't know if we are going to have a majority that wants to rehear this. Let's just shove it off to our next conference and we will think about it then."

 

      I think that's what likely happened. They could've denied it out right. They could have ordered response outright. I think at this point, they are just mulling it over. But it may be the case that someone -- my guess wouldn't be Kavanaugh. My guess would be Gorsuch. Gorsuch might be writing a dissent to the denial for rehearing saying this is a really important issue. The Supreme Court should be considering this issue. Why aren't they? And something like that.

 

Prof. Christopher Walker:  I was curious -- the competitive enterprise institutes in your brief that really is founded on agency theory. And I think you're right that while Justice Gorsuch's dissent, it didn't fully embrace the entire theory, reading the actual outcome seems like he's agreeing with a law fact distinction. Are there other statutes that come to mind that you think would be pretty easy targets under that theory?

 

Devin Watkins:  I'm not 100 percent sure exactly. It depends on the details, and I suspect that there are aspects of different statutes that will come under attack. But other aspects of the same statute might be perfectly fine, so it's hard for me to point to a specific statute. If they come out with this distinction, I suspect it's going to take years, probably a decade before it works its way through the lower courts and there comes to a resolution as to which statute it violates and which ones don't.

 

Prof. Christopher Walker:  It's interesting. One case I have my eye on is the case that's working its way through the federal circuit right now, the steel tariffs case that I think Alan Morrison at George Washington and others are marshalling, which is challenging President Trump's tariffs on steels still under the statute and -- I don't know if you're as familiar with that. I was trying to wrap my head around how the agency framework would work out in that situation.

 

Devin Watkins:  I am a bit familiar. I looked into that case myself. I agree with them to a certain extent that this is a case where very broad authority was given to the President without a whole lot of constraint to his authority. The problem for them is that the one restraint they did add is that it has to be a national security problem that's being decided.

 

      And that is the kind of question that the Supreme Court has, even those justices that support a very strong nondelegation doctrine, it said that within the area of foreign policy and national security, and this hits both of those, those kind of things can be delegated to the President without a nondelegation problem because these are, in essence, a presidential power and the Congress is just asking the President to do what he already has the power to do which is to decide national security and foreign policy questions.

 

      And so within -- I think that is unlikely to be a very strong avenue for the Court. I don't think they're going to be looking to that as the first questions. I know I read -- what was it? Justice Thomas's concurrence, if I remember right, in American Railroad where he talked about the foreign policy aspects and especially under the King of England and the common law and how these kinds of aspects were considered essentially Executive in nature.

 

Prof. Christopher Walker:  Yeah, I think I tend to agree that it's a little bit of an uphill battle. On top of the Article II national security concerns you have in the Supreme Court case law, you also actually have Supreme Court precedent on that statute pretty much on point. Alan Morrison and the other challenges you're seeing, it is distinguishable, but you'd have to also wade into the world of precedent upon precedent there that might be difficult.

 

      Before we open it up to questions, I wanted to just take this off in a little bit different direction for a minute. Jonathan Adler and I have a draft of a new paper that's forthcoming, that I will argue that's up on SSRN, called, "Delegation and Time." And we were obviously writing this before Gundy was decided, but we wanted to draw more attention to folks that are concerned about delegations from Congress to agencies that at least as a normative matter, that we should be caring not just about the breadth of the delegation or the type of the delegation but also just the time.

 

      And so this article, the first part of it just first flags in the first part that we've got to be thinking about time when we're thinking about delegation, and that there are a lot of statutes that are very old and stale and are being used for things that the prior Congress would’ve never even imagined and that maybe there isn't even a majority in the current Congress that supports that. And so we flag in that first half of the paper that for those that are concerned about delegations as a normative matter, not necessarily as a constitutional matter, that should be an issue.

 

      And then in the second half of the paper we at least start to explore one way to address that which would be to require Congress to regularly revisit statutes that govern agencies through some type of mandatory re-authorization process and flesh that out. That was somewhat written in part on -- motivated by the idea that Congress or that the Court probably wasn't going to revisit the nondelegation doctrine any time and reinvigorate it. And so maybe we should focus on other ways to get Congress to return to a regular practice of legislating, of providing clear instructions to agencies.

 

      It doesn't change our approach, but the fact that you had four justices in Gundy and likely also Justice Kavanaugh maybe interested in reinvigorating the nondelegation doctrine. That's a separate issue there.

 

Devin Watkins:  So to a certain extent, I want to push back a little bit on the idea that Congress totally ignores -- or the Supreme Court totally ignores the nondelegation doctrine at this point for the last 70 something years. I don't think that's actually true. It's true that the Supreme Court has not struck down a federal statute and said it's unconstitutional and void because of the nondelegation doctrine.

 

      But more often, what the Supreme Court has done is that they have said if we were to interpret the statute in this way, it would raise substantial nondelegation doctrine reasons or -- they may not say that explicitly but they say basically, it would be unbridled authority or it wouldn't -- something along those lines. And they say instead of doing that to address potential constitutional concerns or for constitutional avoidance, we'll construe the statute in this other way.

 

      And the Supreme Court has done that many times and on very explicitly or at least very closely a nondelegation reason.

 

Prof. Christopher Walker:  Yeah, and I have to say in Justice Gorsuch's dissent in Gundy, he gives a really nice treatise -- not treatise like, but textbook like treatment of this and points out -- and I completely agree with you that the Court, it uses nondelegation as an interpretive cannon, not necessarily as a substantive constitutional doctrine and has narrowed statutes, at least the agency's ability to interpret statutes along that way.         

 

      And it's not just -- he goes through and talks about how void for vagueness is another tool that courts can use, the major questions doctrine under Chevron, and even just the nondelegation doctrine -- or nondelegation cannon that has even greater teeth than that.

 

      One thing that, along those lines, to keep an eye out for is that when then-Judge Kavanaugh in the net neutrality case has a really, really fascinating take on the major questions doctrine which he calls the major rules doctrine.

 

      So remember, the major questions doctrine is just this idea that under Chevron, if it is a major question, they're going to assume that that power isn't delegated to the agency and that the Court has to decide a de novo. Justice Kavanaugh, then Judge Kavanaugh on the D.C. Circuit, took that a step further, I think, and actually said, "Not only are we going to assume that the agency doesn't get any deference, we're actually going to assume that the agency doesn't have authority to regulate if it's a major question."

 

      And I think that's—there it was obviously regulating the internet—it's not a constitutional doctrine. It's not saying it's unconstitutional to do that. It's saying that Congress needs to speak much more clearly if they want to delegate such a major question to an agency.

 

      Those were the types of things that I think most of us thought would be the moves that the courts would be making to carve back on agency power. But after you read Justice Gorsuch's dissent in Gundy, it sure seems like the constitutional doctrine itself could be reinvigorated.

 

Devin Watkins:  Yeah, I agree. Absolutely.

 

Micah Wallen:  We'll now go to our first question.

 

Caller 1:  Good afternoon, gentlemen. Thank you for you fine presentation. I have just a quick procedural question. Is it clear that Justice Kavanaugh is eligible to participate in the question whether to grant rehearing? And if so, does it take five votes to grant rehearing either way?

 

Devin Watkins:  Yeah, so I actually spoke with the clerk at the Supreme Court to confirm this. Justice Kavanaugh will be considering the motion for rehearing in this case. And I believe it does take five votes.

 

Prof. Christopher Walker:  I had a follow-up on that, Devin. So if Justice Kavanaugh, maybe you don't know the answer to this, fine, but I was trying to puzzle through this like during last term, could Justice Kavanaugh at any point expressed an interest in participating in a case and would they have had to re-argue it or could they -- I'm kind of surprised that -- I guess if Joan Cicero is right on CNN that there was a five justice majority to strike down the statute as unconstitutional and Justice Sotomayor's writing a very narrow opinion. I'm imagining saying something about how criminal laws differ and you can't delegate it, maybe some of the stuff that Judge Gorsuch actually said in a concurrence when he was looking at the same statute when he was on the Tenth Circuit. Then maybe Justice Kavanaugh didn't feel like he needed to intervene, but do we know the process? Could he have jumped in at any time and tried to start participating? And what would that look like?

 

Devin Watkins:  So by Supreme Court tradition, justices that aren't on the court at the time oral argument occurs don't participate in the case. And so by tradition, they would've had to order re-argument for Justice Kavanaugh to be able to participate because he wasn't on the Court at the time. That is just by tradition. Technically, if the Court wanted to, they wouldn't have to follow that. But I strongly suspect that they would've ordered re-argument if they felt they needed Kavanaugh to be on the opinion to be able to have a majority.

 

      However, in this case, there was a majority to strike down the statute, or at least that's what was supported, and that majority was held until the very last month of the term in which case there was no time left for oral argument that term, which is a rather rare circumstance.

 

Prof. Christopher Walker:  Yeah, it has to be. And maybe it'd be fascinating to be a fly on the wall because my guess is once -- if they count as true, you never know entirely, right? But if it were true, and this flipped a month before, and people are scrambling to rewrite opinions, I would be shocked if someone did not casually ask Justice Kavanaugh if he wanted to jump in. And if so, my guess is that they'd have to vote it to re-argue the case the next term which the year I was clerking, we had Citizens United set for re-argument. I think that requires five votes, right?

 

Devin Watkins:  Yeah, and so my understanding is it takes five votes, too, and they may not have had five votes.

 

Prof. Christopher Walker:  Yeah, except this is one of those where I would imagine they would've gotten to five. If Justice Kavanaugh really wanted to participate, I don't know, who knows, right? But yeah, it's interesting to see how that played out or didn't play out. Maybe we'll hear more if there's a statement regarding the denial of rehearing.

 

Micah Wallen:  Next caller, go ahead and ask your question.

 

Warren Belmar:  This is Warren Belmar, excellent discussion. I had a question about a subsidiary issue. Where delegations are permissible, has there been any litigation or consideration given to how far the agency receiving the delegation can subdelegate that authority? Is it limited solely to people who have been confirmed by the Senate or is it permissible to subdelegate down to non-Senate confirmed individuals?

 

Devin Watkins:  So there is active litigation on this question, I believe PLF, Pacific Legal Foundation, is actively litigating this, if I remember right. They are arguing that only principal officers of those that are of the highest authority, those that have been selected by the president, confirmed by the Senate can issue final regulations because those are binding on the government and cannot be changed without going through, again, another notice-and-comment procedure.

 

      Now, there's some people that argue that maybe you can delegate to inferior officers and not just principal officers. These are people selected by the head of an agency and appointed by them but not appointed by the president or confirmed by the Senate.

 

      And then there are the cases in which the government has actually delegated it not just to inferior officers but to mere employees. And this has happened, I guess, in the FDA quite often. The government is arguing that it doesn't matter. There's just active litigation on that. I find it highly improbable that a mere employee can issue a -- it's basically, in my mind, it would be completely unconstitutional for an employee to issue some kind of final binding rule on the United States like that.

 

      Now whether an inferior officer can do that rather than a principal officer, I consider that a much closer question.

 

Warren Belmar:  I was also concerned about the issue in enforcement proceedings. Today, many agencies are enforcement -- have responsibility for enforcing regulations and they can either start administrative proceedings or judicial proceedings to enforce their statutory responsibilities. And those, on occasion, have been subdelegated down from the secretary or the head of the agency. Have you seen any litigation in that area as opposed to the rulemaking side?

 

Prof. Christopher Walker:  Just let me jump in, Devin. Couple quick points on that because I think what Devin's focused on is more is the actual rulemaking or the actual, I don't want to say law-making but basically, right?

 

      On the enforcement stuff and on subdelegating more generally, there is a great article by Jennifer Nou, a law professor at Chicago, called -- I think it's called, "Subdelegating Powers," I think it came out in the Colombia Law Review a couple years ago, where it really provides really, really nice snapshot of the lay of the land of subdelegating. And as you mentioned, one of the more controversial areas is with the Security and Exchange's commission's director of enforcement where under the Obama Administration, they had delegated the authority to make enforceable decisions to that director.

 

      And I think you'll see there's subdelegating that goes on throughout the administrative state. Now, when it comes to enforcement, the settlement to a lot of different bureaucratic power. At the utmost, though, actually doing what we're talking about under nondelegation sense, not as much.

 

      My second quick point I want to make is last term, the Supreme Court decided Kisor v. Wilkie, which was the challenge to whether to overrule Auer deference to deference, agencies get further interpretations regarding regulations, and Justice Kagan wrote the opinion and upheld Auer deference but really made it something very different than what it was traditionally understood to be. And she added a number of additional fresh-held inquiries about whether agencies will get deference. And one of them is whether the agency's interpretation is authoritative. And she said that normally means that it has to come from the agency head, but in some circumstances, if the process is in place, it can come from someone else, if it's the normal process for making policy within the agency.

 

But I note that because I think it's fascinating going forward. I think she's laid down this marker in the Kisor context that I think will now be something litigants will push in the Chevron context, and that won't be too hard because most of Chevron cases are rulemaking or a form of judications, the agency had to sit and make an authority. But I could also imagine it getting into other kind of subdelegation type bureaucratic power instances like delegating the power to a director of enforcement to decide whether to bring enforcement actions.

 

Micah Wallen:  All right. We'll now go to our next question.

 

Caller 3:  Yeah, for those of us who litigate, we're wondering what is the quickest and cleanest vehicle to getting the next pro-Gundy­ case to the Supreme Court? Where should we be looking?

 

Devin Watkins:  There are a lot of cases raising nondelegation doctrine right now. I'm not sure what the next big case is likely to be. I had saw the steel tariff case. They're obviously raising nondelegation doctrine in that case, but I don't think that's a good vehicle.

 

      I'm not sure exactly what the best vehicle is because there's a lot of cases right now that are coming up on nondelegation doctrine stuff. Many of these are at the circuit level right now, and they're just starting and they're clearly going to be coming up to the Supreme Court, but I'm not sure what the ordering's going to be or which one's going to be first. I think -- so I'm not sure I can help very much with that.

 

Prof. Christopher Walker:  When I teach legislation regulations to my first-year law students every year, I'm always struck by Justice Scalia's opinion in Whitman v. American Trucking Associations, where he says in upholding it on nondelegation ground, he says if all of these other statutes, and there's like two paragraphs saying all the other statutes have been upheld under nondelegation doctrine grounds, and they're all very broad like regulating the public interest. I would say that that might be a place you want to start, if you're a litigant, is go back and see those statutes that have already been -- that are really broad in that context and see if any of those seem like if they are good vehicles you could use to litigate that.

 

I do think the FCC and the FTC are other agencies that come immediately to mind that have extremely broad statutory mandates for regulating, and I can imagine especially the FCC contexts, there's already a lot of litigation around FCC actions. I can imagine we're going to start seeing a lot of nondelegation challenges coming out of the FCC's regulatory activities. But someone needs to write this up. I'd be really curios to see which ones seem to be the lowest hanging fruit.

 

Micah Wallen:  I'll turn it back over to you, Professor, and is there anything else either of you would like to cover?

 

Devin Watkins:  No, I think that's about it.

 

Prof. Christopher Walker:  I would just conclude by saying we'll be watching the Supreme Court orders list over the next couple of weeks to see what happens. If nothing happens and it just continues to be relisted, we really can't -- it's hard to read the tea leaves on that. If there's going to be any movement towards granting rehearing, we will almost for sure see some order at some point requiring a response or asking for a response.

 

And, again, I'll probably stick by my prediction that we'll probably just see a denial at some point with a separate opinion -- statement by someone. I'm guessing Kavanaugh. It sounds like Devin is guessing Gorsuch, that just articulates further why the case -- what we should be doing with nondelegation going forward.   

 

Micah Wallen:  Absolutely, and on behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.