Clutching Defeat from the Jaws of Victory: Gundy and the Prohibition on Delegation

The prohibition on the delegation of legislative power to the executive is one of the key structural features of the Constitution’s original meaning. The prohibition prevents the legislature from passing a law that authorizes the executive (instead of the legislature) to make the basic policy decisions in an area. The prohibition thus makes it harder for the legislature to abdicate its responsibility for passing laws and transfer that task to administrative agencies, who are not politically accountable. Unfortunately, the Supreme Court has not been enforcing the prohibition on delegation since the New Deal, which has been one of the reasons the Administrative State has grown so large.

Last week, the Supreme Court had the opportunity to start the process of restoring the prohibition on delegation. In Gundy v. United States, the Court reviewed a delegation of discretion to the Attorney General concerning the registration of sex offenders. Although there was good reason to believe that five members of the Court would have supported a revival of the prohibition, that revival nonetheless came up short. 

In Gundy, the Court upheld in a 5 to 3 decision the delegation of discretion to the Attorney General. The four progressives voted to uphold the traditional non-enforcement of the prohibition on delegation. Although Justice Alito provided the fifth vote to uphold the delegation, he did not join Justice Kagan’s opinion for the progressives. Justice Gorsuch, writing for Chief Justice Roberts and Justice Thomas, dissented, arguing that the delegation should be struck down as unconstitutional. 

Justice Gorsuch’s dissent on the non-delegation doctrine was a tour de force. He analyzed the Sex Offender Registration and Notification Act (SORNA), which delegated to the Attorney General the authority to determine whether sex offenders who were convicted prior to the Act were required to register for it. Gorsuch showed that the statute gave the Attorney General largely unlimited discretion to decide whether these sex offenders needed to register, which of these sex offenders needed to register, and to what extent they needed to do so. 

Justice Gorsuch explained that delegations had been largely limited prior to the New Deal, and that the Supreme Court had struck down two significant delegations during the New Deal, but then radically changed course. Since the New Deal, the Court has approved every delegation it has considered, however broad the delegation was, always concluding that it satisfied the Court’s intelligible principle test for delegations. Most importantly, though, Gorsuch discussed the Constitution’s original meaning, making a strong argument that the Constitution prohibits Congress from delegating legislative power to the executive. 

What is so frustrating about the case is that it is likely that Justice Gorsuch’s dissent could have been a majority opinion. Justice Kavanaugh, who did not participate in the case because it was argued just prior to his confirmation, is thought to be pretty strict on limiting the Administrative State and therefore might have agreed with the three right wing justices. Justice Alito, who voted with the progressives, indicated in his separate concurrence that he would be willing to revisit and cut back on the constitutional permissibility of delegation, but only if a majority of the Court were willing to do so. Since Justice Kavanaugh was not participating, Justice Alito voted to apply the existing non-delegation doctrine. 

What a missed opportunity! The non-delegation doctrine is important. It is one of the areas where the New Deal Court eviscerated constitutional restraints on government. At present, there are no real limits on delegations, but new limits—depending on how strongly they would be applied in practice—could be quite significant. By requiring that Congress make the basic policy decisions, a reinvigorated non-delegation doctrine would guarantee that those policy decisions have the support of a broad array of political actors (both houses of Congress and the President or a supermajority of each house necessary to override the President’s veto), which would help ensure that they are both desirable and reflect the values of the people. 

The New Deal’s abandonment of constitutional restraints have been at least partially reversed in several areas, but sadly not for delegations of legislative power. First, in the 1976 case of Buckley v. Valeo, the Court started to enforce the separation of powers as to appointments and then in INS v. Chadha in 1982 the Court took seriously the Constitution’s bicameralism and presentment requirements. As a result of these early cases, we now have a reasonably developed separation of powers that places some limits on the Administrative State. 

It took another generation until the Court started to enforce Commerce Clause restrictions that were abandoned during the New Deal. The revival began in US v. Lopez in 1995. While Lopez was cut back in Gonzales v. Raich, this line of cases still allowed the Court to hold a part of Obamacare unconstitutional under the Commerce Clause in NFIB v. Sebelius in 2012 (and helped the Court strike down a coercive portion of Obamacare’s exercise of the spending power as well). 

But unlike in these areas, the Court has not been willing to cut back on the excessively lenient non-delegation doctrine. After two significant delegations were struck down durimg the New Deal, the Court has never again enforced the doctrine, even though there have been enormous delegations. 

So there was not a moment to waste. But, unfortunately, the Court did just that. The most obvious point is that if four justices favored cutting back on permissible delegations and four justices did not, the Court should have had the case reargued so Justice Kavanaugh could cast the deciding vote. But the Court did not do so, and it was not clear why. There appears to be some mystery about when the Court will choose to have a case reargued. In the past, the Court has sometimes reargued cases where the vote was split 4 to 4 and the newest justice had not participated in the previous argument. In fact, the Court did this in the recent property rights case of Knick v. Township of Scott and it did so in the past when Justice Alito and Justice Kennedy came on to the Court. It is a serious problem that the Court did not do this in the present case. 

It is especially problematic that Justice Alito voted with the progressives in Gundy. The SORNA delegation was one of the best vehicles for reexamining the non-delegation doctrine available.  SORNA imposed a criminal sanction for failing to register and it established no standard at all governing the exercise of the Attorney General’s discretion. If Justice Alito had simply joined Justice Gorsuch’s opinion, then the court would have been split 4 to 4 on the issue. And then a new case challenging the delegation under SORNA could have been brought to the Court, which would have allowed Justice Kavanaugh to participate. Now, it seems quite unlikely that the Court will take a SORNA case, since that would require the Court to reverse a recently decided precedent concerning the statute. 

The right wing Justices seemed to have all of the pieces in place to reverse one of the most destructive aspects of the New Deal. And they blew it. The mere 5 to 4 majority that these Justices enjoy might be just one death or retirement away from becoming a minority.  Moreover, successfully reviving the delegation prohibition is likely to take more than a single case. These Justices acted as if they have all of the time in the world to restore the prohibition. They do not.

Reader Discussion

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on July 02, 2019 at 08:35:32 am

Maybe, but maybe not. I deal with the more positive take on this case in my article: https://cei.org/blog/gundy-decision-could-signal-fundamental-reform-administrative-state

Given the Supreme Court's calendar for the October sitting. We can be almost certain that Sotomayor was writing the majority opinion in Gundy (she is the only justice who was not assigned a majority opinion to write). And yet the plurality opinion was written by Kagan. Clearly Sotomayor lost her majority at some point. When did that occur? It may have happened close to the end of the term, when there wasn't time for oral arguments left this term.

In such a case, while the Court could have kicked the case to the next term like they did in Carpenter v. Murphy. But they were already kicking Murphy and the Court hates ordering re-argument cases past the end of a term.

I'm very well versed in internal Supreme Court procedure, but even I don't know exactly how many votes are needed to order reargument in a case past the end of a term. Do they need 5 for that? If so, they may not have had 5 votes for doing so as it is clear none of the progressive wing of the Court would do so. So instead they may have been forced to affirm by an equally divided court.

Faced with affirmation by an equally divided Court, Justice Alito may have thought doing this would be better. If they affirmed by an equally divided Court, by Court tradition, no opinions would have been issued (only a single line would be). In such a case, Justice Alito's vote for the judgment may not have changed the outcome at all (the lower court was going to be affirmed either way). But now, because of Justice Alito's vote, we get to read Justice Gorsuch's opinion. And as you say that opinion is a tour de force. It will be read very closely by any future litigants looking to argue the non-delegation doctrine going forward.

The key that I think will distinguish these different possibilities (did Alito go soft or did he just want Justice Gorsuch's opinion to be published), is if a motion for reconsideration is made. With the motion for reconsideration, Justice Kavanaugh will participate as he is now on the Court. So, if Justice Alito wants to reconsider this doctrine with a full court, he can do so, and if Justice Alito and Kavanaugh vote for reconsideration then they have 5 justices and can force that through perhaps reconsidering it next term. If that is the case (that it gets reconsidered next term after a motion for reconsideration), is it better or worse than a single line statement ordering reargument next term? Might even be better, given everyone can read Justice Gorsuch's opinion now.

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Devin Watkins
on July 02, 2019 at 18:37:22 pm


Thanks for the possible explanation. I almost ate my hat when reading that Alito would have voted differently had there been a majority of votes.

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on July 02, 2019 at 19:15:08 pm

If the motion for reconsideration is filed and granted, then that would be great. I am not holding my breath -- nor should you hold yours -- but I hope you are correct.

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Mike Rappaport
on July 02, 2019 at 22:43:29 pm

We filed an amicus brief in the case and were in contact with the Federal Defenders who were representing Gundy. I've already suggested to them that they file a motion for reconsideration (we will see if they take my suggestion). This is the first time I've ever suggested to a party that they file a motion for reconsideration (usually its a useless effort that is denied 10,000 times for every grant). But if it is filed, then at that point the ball is in Alito's hands.....

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Devin Watkins
on July 03, 2019 at 10:19:46 am


Interesting impressions and analysis!

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Paul Binotto
on July 03, 2019 at 11:04:36 am

Interesting piece;

I'm disappointed at the result and a little surprised, by the swing-vote - not that there was one, but that it was Alito, (Devin makes an interesting observation as a good possible explanation), although I too, would expect Alito to reconsider.

This individual case aside, I've been (loosely) trying to pay attention to which Justice is gravitating towards becoming the "anticipated/predicable" swing-vote now that Kennedy has vacated the role.

And, am beginning to think it Roberts - and therefore, would have expected him to provide the swing in this case .
Devin's calculus doesn't really change whether the swing was Roberts vs. Alito - does it bode better for the eventual revival of non-delegation if Alito appears less receptive of it than CJ Roberts?

Perhaps the much better students of SCOTUS than I can tell me if and how often the C.J. has also provided the predictable swing vote. It would seem to me that next to the power wielded by the C. J. , that the Swing would possess a great deal of influence (power) on the court - to have the power of two roles concentrated in a single individual would likely be formidable indeed - would it also be unprecedented?

The vacuum created by the departure of Kennedy is abhorred on SCOTUS as much as anywhere, and likely reflected in the somewhat wobbly decisions of this last term. The lengths to which Roberts was willing to stretch the Constitution in Obamacare would seem to make him a natural to fill Kennedy's spandex robe.

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Paul Binotto
on July 03, 2019 at 11:07:45 am

although I too, "would'NT" expect Alito to reconsider, that is.

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Paul Binotto
on July 08, 2019 at 13:42:00 pm

This interesting statistical analysis - https://www.scotusblog.com/2019/07/empirical-scotus-changes-are-afoot-5-4-decisions-during-october-term-2018/ - seems to suggest my attention has been very loose indeed; and much in need of tightening.

But, either by pride or prejudice, (probably both), my intuition about Roberts isn't yet fully squelched...

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Paul Binotto
on August 01, 2019 at 07:43:05 am

[…] In an excellent post, my colleague Mike Rappaport correctly notes the risk of this strategy of delay—a potential loss of the Supreme Court majority for conservatives. But a revival of the non-delegation doctrine is not likely to have precise contours, and it would be easy for a future liberal majority to reverse course in any event. One problem with using Gundy as a vehicle for strengthening the non-delegation doctrine is that rehearing the case to provide clearer instructions about possible reversals of past precedent would have forced Justice Kavanaugh to become the decisive vote on a momentous issue very early in his tenure—after having just gotten past the challenges of his confirmation hearing. But as with Kisor, the success of this strategy is premised on a continued conservative majority. […]

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Judicial Strategies to Contain the Administrative State
on August 29, 2019 at 05:57:04 am

[…] the nondelegation doctrine, the conservative Supreme Court Justices continue to find ways to lose cases they should win. In this instance, the main culprit was Chief Justice […]

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Image of Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference
Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.