Government regulation as we know it was cast into doubt by the Supreme Court’s much-anticipated decision in Gundy v. United States. By a narrow margin, the court upheld a provision of the Sex Offender Registration and Notification Act (SORNA). The provision at issue grants the attorney general (AG) the authority to apply SORNA’s requirements to conduct that took place before the statute was enacted. While the court affirmed Congress’s authority in this case, Gundy’s opinions reveal that the extent of Congress’s power to vest authority in administrative agencies is in flux.
The constitutional issue
The constitutional issue at stake is the so-called non-delegation doctrine, which — in theory if not in fact — places limits on Congress’s power to vest decision-making authority in other branches of government. Doubts about the vitality of the non-delegation doctrine have dogged it for decades; indeed, the Supreme Court has struck down only two statutes for violating the doctrine in the history of the United States and has not done so since the advent of the New Deal.
The court’s rejection of non-delegation arguments in Gundy, therefore, is nothing new. What is new, and potentially momentous, is the fact that four of the court’s justices expressed a willingness to jettison nearly 85 years of consistent precedent to invigorate a doctrine that has been pronounced dead on more than one occasion.
The Gundy opinions
Gundy’s opinions reveal that the non-delegation doctrine, like many other issues before the court, comes with partisan political overtones. Writing for a plurality that included Justices Ginsburg, Breyer, and Sotomayor, Justice Kagan read a feasibility requirement into SORNA, holding that the AG’s discretion was limited by a requirement to implement SORNA “as soon as feasible.” With this limitation on the AG’s discretion, she concluded that the provision “easily passes constitutional muster” because it gives the AG an “intelligible principle” to follow, which is all that the non-delegation doctrine requires.
In a dissent joined by the chief justice and Justice Thomas, Justice Gorsuch took issue with Kagan’s reading of the statute, noting that the limiting principle identified by Kagan is nowhere to be found in the statute. More importantly, the dissent criticized the current state of the non-delegation doctrine. In stark language, Gorsuch argued that the structure of the Constitution demands segregation of legislative authority from the executive branch. Most notably, he opined that the “intelligible principle” test that has been the touchstone of the non-delegation doctrine for generations has “mutated” and has “no basis in the original meaning of the Constitution [or] in history.”
Justice Alito provided a fifth vote to uphold the statute, but made clear that his sympathies lie with the dissenters’ reading of the non-delegation doctrine. He opined that SORNA reflects an intelligible principle no less than the many statutes the court has upheld under this same test. Crucially, however, Alito laid a foundation for a future decision to upend the non-delegation doctrine, noting that he would support an effort to “to reconsider the approach we have taken for the past 84 years” if a majority of the court was willing to take that step.
The future of government regulation
What does this all mean for the future of government regulation? Missing from Gundy, of course, is the vote of Justice Kavanaugh, who did not take part in the case. One can only speculate as to how he would have voted in Gundy, but given the partisan nature of the battle lines developing around the non-delegation doctrine, there are four, and quite possibly five, members of the court willing to revisit the doctrine in an appropriate case. At the very least, then, Gundy is bound to generate reams of litigation as parties challenge some of the countless delegations that are as broad or broader than SORNA’s.
Moreover, when the court ultimately does revisit the doctrine, it is not clear how drastically it will depart from current law. Despite some categorical language, Gorsuch’s dissent also suggested that many delegations that have been upheld in the past might survive a more robust version of the intelligible principle test. Finally, state legislatures should consider preparing for the significant federal change that is likely coming.
As federal regulatory programs are invalidated under a revived non-delegation doctrine, state regulatory programs will have to pick up the slack to ensure the continuity of their health and safety, environmental and other important regulatory programs that currently depend on standards set by federal regulations.
Evan C. Zoldan is a professor of law at The University of Toledo.