Now that Justice Kavanaugh is confirmed we can expect a spate of articles saying that the new majority on the Supreme Court will cause the sky to fall.
The Supreme Court has accepted certiorari in a case that raises a nondelegation doctrine question (as well as several other issues). In Gundy v. United States, the nondelegation issue involves the federal Sex Offender Notification and Registration Act (“SORNA”). The Act relates to the requirement that sex offenders register their status. In one provision of the Act, “Congress left it to the Attorney General to decide whether and on what terms sex offenders convicted before the date of SORNA’s enactment should be required to register their location or face another criminal conviction.”
While the Act specified in detail how it was to be applied to a person convicted after its passage, the Act said almost nothing about how it was to be applied to past offenders. Instead, it delegated the question to the Attorney General, providing that “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 registration of any such sex offender.”
As then-Judge Gorsuch wrote in a different case before the 10th Circuit on the provision, this leaves enormous discretion to the AG:
As the government acknowledges, this language leaves the Attorney General free to do nothing . . . Alternatively, “[u]nder his delegated authority in Subsection (d), the Attorney General could” require all past offenders to register or “require some but not all to register.” Or, alternatively still, he could require those forced to register to “comply with some but not all of the registration requirements” applicable to future offenders in order to adapt the law as he thinks best for past offenders . . . Even then, the Attorney General remains free to “change his mind at any given time or over the course of different administrations.”
I agree with Judge Gorsuch that the Supreme Court should hold this delegation unconstitutional.
The problem in this area is to establish a workable standard for excessive delegations. I have a proposal for a reasonably workable standard. Some broad delegations to agencies allow them to take actions that are “in the public interest.” Such delegations should be unconstitutional. Only delegations that are more constraining would be constitutional. While this would allow less constrained delegations than I would prefer, it would establish a relatively clear standard. And it would hold the delegation in Gundy unconstitutional, since the delegation in that case had no limitation on the AG at all.
But my guess is that the Supreme Court is not interested in resolving the matter in this way. Instead, I am guessing some of the justices are attracted to Justice Gorsuch’s dissent when he was a 10th Circuit judge, where he advocates a special standard on delegations that involve criminal law sanctions. Here is Gorsuch’s proposed standard, which he believes is consistent with Supreme Court case law in the Touby v. US case:
Distilling Touby to its essence, at least three “meaningful” limitations emerge: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use?). These three criteria could easily be applied to most any delegation challenge in the criminal context and provide the more meaningful standard the Court has long sought. In fact, since Touby a number of courts of appeals have employed something very much like them when assessing delegation challenges to federal criminal statutes.
While it would have a narrower application than the standard I suggest, Gorsuch’s standard would still be important, as it would strike down a delegation arguably for the first time since the New Deal. And once that occurs, it becomes easier for the Court to strike down other delegations.