Notice & Comment

Nondelegation after Gundy

This Term, in Gundy v. United States, the Supreme Court once again considered whether a statutory grant of authority (here, under the Sex Sex Offender Registration and Notification Act) to a federal agency or executive branch official (here, the Attorney General) violates the nondelegation doctrine.

As students of administrative law know, the Court has interpreted Article I of the Constitution to prohibit Congress from delegating legislative power to federal agencies (or anyone else). But the Court has also interpreted this nondelegation doctrine to allow Congress to delegate discretion to federal agencies to implement legislation if the legislation provides an “intelligible principle.” This intelligible principle approach has resulted in a toothless doctrine. As Cass Sunstein has detailed, “Since 1935, the Supreme Court has not struck down an act of Congress on nondelegation grounds, notwithstanding the existence of a number of plausible occasions.”

The outcome in Gundy was no different. A majority of the Court rejected the constitutional challenge, with the plurality concluding that the statutory “delegation easily passes constitutional muster.” As Mila Sohoni has argued, however, “the significance of Gundy lies not in what the Supreme Court did today, but in what the dissent and the concurrence portend for tomorrow.” In particular, only four Justices were willing to continue to embrace a toothless nondelegation doctrine. Justice Alito cast the fifth and decisive vote because “it would be freakish to single out the provision at issue here for special treatment.” He made clear in his concurrence in judgment, however, that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, dissented, arguing that the statute at issue did not pass the intelligible principle test and, moreover, the current, “mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.” Although Justice Kavanaugh did not participate in the case, Kristin Hickman has already predicted that “perhaps we will not need to wait another twenty years for that next case raising the nondelegation doctrine.”

Gundy will no doubt re-ignite a vigorous debate among scholars, litigants, and judges about the future of the nondelegation doctrine and whether an administrable standard can be articulated to check the breadth and substance of congressional delegations.

However, in a new draft paper entitled Delegation and Time, Jonathan Adler and I argue that courts and scholars should not focus myopically on the breadth and substance of delegation. There is a different, under-explored dimension of the delegation debate: the temporal complications of congressional delegation. In particular, broad congressional delegations of authority by one Congress become a source of authority for agencies to take action decades later that was wholly unanticipated by the enacting Congress or could no longer receive legislative support. This problem has taken on added significance in the current era of congressional inaction.

The first half of the paper details why this is an overlooked problem in the delegation debate and why we should focus more attention on the temporal problems with delegation. We illustrate the problem with short case studies on regulating climate change and net neutrality. The second half explores one way in which Congress could address the problem: revive the practice of regular reauthorization of statutes that govern federal regulatory action. To do so, we present eight snapshots of current reauthorizations in diverse regulatory contexts and then flesh out how a more systematic reauthorization regime could work in practice. The article concludes by exploring some of the implications of our proposal beyond nondelegation, including how regular reauthorization would help strengthen the partnership between Congress and the administrative state as well as mitigate some of the major concerns that have been raised in recent years regarding Chevron deference.

We just posted a draft of the paper on SSRN here. This is an early draft, so comments are particularly welcome.

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