Courthouse Steps Oral Argument: Gundy v. United States

Criminal Law & Procedure, Federal Separation of Powers, Administrative Law, and Regulatory Transparency Project Teleforum

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Since 1789, the Supreme Court has struck down only two laws on “nondelegation” grounds, both in 1935. Gundy v. United States will potentially be a third such ruling, depending on whether the Deputy Solicitor General can convince the justices to save the delegation of authority in the Sexual Offence Notification Act (SORNA). The particular provision of SORNA at issue, which directs the Attorney General to decide whether SORNA’s registration requirements apply 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 case directly affects three of the Federalist Society’s practice groups, and the case indirectly affects almost every other area of federal law.

The nondelegation doctrine operates to prevent Congress from delegating the lawmaking power the people vested in it to another branch or any other entity, but what is the core lawmaking power that Congress cannot delegate? How broadly can Congress phrase its legislation, and how much can it delegate to the regulatory agencies to fill in?  The courts’ role in enforcing the constitutional delegation line is even more hotly debated.  No justice has disagreed that the nondelegation rule is essential to maintaining the constitutional Separation of Powers, but some have expressed concern in prior decades about a judicially manageable standard for the courts to apply. In recent years, the Court’s lax enforcement of its “intelligible principle” standard from 1928 has been criticized by Justice Thomas, then Judge Gorsuch and many other commentators. The Gundy case presents the Court with a range of options, including from amici who 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.  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?

Todd Gaziano is the counsel of record for Pacific Legal Foundation’s brief in Gundy supporting reversal of the decision below, and joins us to discuss the oral arguments.

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