Toward a Non-Delegation Doctrine That (Even) Progressives Could Like

Today, scholars often view the non-delegation doctrine, which, in its simplest terms, would prohibit Congress from delegating its legislative power to administrative agencies or other entities, as a moribund relic of a pre-1937 U.S. Supreme Court that was hostile to the modern administrative state and the New Deal that built it.[1] Even if that view is mistaken,[2] it is undeniable that the doctrine’s fall into desuetude has made it easier for the modern regulatory state to grow to is current size and complexity, with all the public benefits that growth has allowed.[3] Thus, many progressives were dismayed when the Court granted a writ of certiorari in United States v. Gundy, a case that raised a non-delegation challenge to the Sexual Offender Registration and Notification Act (SORNA).[4] Coming when other constitutional foundations of the modern administrative state have faced attack from the judiciary,[5] it is easy to understand the concern.

In Gundy, the Court, by a fractured five-to-three majority, rejected the non-delegation claim.[6] However, one member of the majority, Justice Alito, all but announced his amenability to reconsidering the basics of the current non-delegation doctrine.[7] When combined with the three Gundy dissenters, who spoke through Justice Gorsuch’s sharply-worded attack on current doctrine,[8] at least four justices seemed likely to favor that reconsideration.[9] Thus, the real news from Gundy is not the rejection of the non-delegation challenge to SORNA, but rather the possible amenability of a majority of the justices to reopening a question that many had considered settled for nearly a century. At the very least, the prospect of even possibly reopening the non-delegation issue will surely prompt litigators to test the Court’s new interest.

Could such a reconsideration redound to the benefit of progressive constitutionalism? The good (and perhaps surprising) news is that the answer is yes—albeit a qualified and contingent yes. There is a history of progressive interest in non-delegation principles. A list of justices calling for sharper non-delegation scrutiny since 1937 includes not just conservatives such as Justices Rehnquist and Burger,[10] but also jurisprudential progressives such as Justices Brennan and Douglas, and proponents of a muscular administrative state, such as Justice Black.[11] Excavating those latter justices’ concerns may help progressives craft an approach to non-delegation that both blunts any deleterious impact on government’s power to regulate for the public good and affirmatively furthers the interlocking projects of guarding personal liberty and ensuring executive branch fidelity to law. Of perhaps more immediate concern, while one should not lightly toy with constitutional doctrine in response to the conduct of any particular president, a revived non-delegation doctrine may help rein in any future administration that follows the current one in its questionable emergency declarations and extravagant claims of executive power.

This article acknowledges the real concerns progressives have with the non-delegation doctrine but urges them to consider the risks presented by a complete abandonment of any limits on Congress’s power to delegate power. Today, a broad grant of discretionary power to an administrative agency is just as likely to lead to regulatory inaction as to aggressive and appropriate regulation. Moreover, since 2017, existing broad delegations—for example, under many federal environmental laws—have been subject not just to regulatory inaction but regulatory rollbacks. Thankfully, courts have blocked much of that backsliding.[12] But those decisions have rested, at least in part, on the agency’s failure to comply with statutory mandates.[13] For these reasons, today it might be imperative for Congress to insist on such mandates. Of course, those mandates require political support to be enacted. But in a world of “presidential administration,”[14] in which the president places a heavy hand on how the bureaucracy implements legislation, statutory requirements that agencies at least consider particular factors or regulatory options may be necessary to help ensure executive fidelity to law.

To be sure, this argument consists, in part, of a call to Congress to change how it legislates. But courts retain a role in enforcing this principle. Most relevantly, it bears remembering Justice Brennan’s admonition, a generation ago, that agencies may not impair personal liberty absent at least relatively clear statutory authority.[15] While this concern transcends any particular presidential administration, one need only think about the current administration’s use of broad statutory authority in the immigration context to realize that liberty is directly at stake in the non-delegation discussion. If nothing else, that realization might make progressives more accepting of a non-delegation doctrine that did not try to do too much but aspired to do something.

But even if these arguments do not convince progressives of the benefits of reconsidering the non-delegation principle, the signals sent in Gundy nevertheless suggest the wisdom of that project. In Gundy, four justices either called for or expressed a willingness to rethink Congress’s power to delegate legislative power. A fifth, Justice Kavanaugh, did not participate in Gundy but could very well supply the final vote needed to create a majority committed to such a reexamination. In light of that reality, progressives may need to debate and persuade their colleagues, not about whether the doctrine should be rethought, but how. In other words, progressives may not have the luxury of sitting out this fight by clinging to the status quo. When the time comes, they should be ready.

This article proceeds in four parts. Part I lays out the basics of the non-delegation doctrine and traces its evolution up to Gundy. Part II explains the justices’ competing applications of the doctrine in Gundy and their implications. Part III offers alternative approaches for a modestly revitalized non-delegation doctrine—approaches that further progressive commitments or at least mitigate any harm to them. Part IV summarizes and concludes, reprising the title of the article but converting it into a question. That conversion accounts for the reality that, for many progressives, any re-engineering of the non-delegation doctrine is a fraught enterprise that carries risks for progressive priorities. But given the winds blowing from the Supreme Court, progressives may have no choice but to embark on it.

I. Non-Delegation Basics

A. The Doctrine

If lawyers and law students remember one thing about the non-delegation doctrine, it is probably that it was used twice in 1935 (what Cass Sunstein called the doctrine’s “one good year”[16]) to strike down provisions of the National Industrial Recovery Act,[17] but was never used again. A slightly fuller recollection might view the supposed demise of the doctrine as part of the Court’s retreat from its struggle against the New Deal.[18]

These understandings reveal the truth of the adage that “a little bit of knowledge is a dangerous thing.” The most problematic feature of this basic understanding relates to the doctrine’s supposed death after 1935. Only one year after the doctrine’s “one good year,” six justices agreed in Carter v. Carter Coal that the Bituminous Coal Conservation Act of 1935 was unconstitutional. The decision rested, in part, on the Act’s delegation to mine operators to establish wage and other working conditions, which would then have the force of federal law. This, the Court concluded, constituted “legislative delegation in its most obnoxious form.”[19] Concededly, that majority consisted of the “Four Horsemen” of the pre-1937 Court, along with their sometime fellow-travelers Justices Owen Roberts and Charles Evans Hughes;[20] thus, one might think that Carter Coal’s application of the non-delegation doctrine simply constituted the last gasp of the Old Court’s struggle against the modern administrative state. But several times since the 1970s the Court has narrowed statutory language delegating power to agencies on the ground that broader constructions would raise non-delegation concerns.[21] This phenomenon reveals the doctrine’s continued existence, if not its full-blown vitality. But any claim that the doctrine has suffered the fate of, say, the Lochner-era liberty of contract is surely overstated.[22]

The standard theory of the non-delegation doctrine is straightforward, if nevertheless contested. As Justice Scalia explained in Whitman v. American Trucking Ass’ns, the last major pre-Gundy non-delegation case, “Article I, § 1, of the Constitution vests ‘[a]ll legislative Powers herein granted . . . in a Congress of the United States.’ This text permits no delegation of those powers . . . .”[23] Thus, according to Justice Scalia’s explanation, the non-delegation doctrine rests on Article I’s Vesting Clause, which, by reflecting “We the People[’s]” decision to vest Article I’s “legislative powers” in Congress, implicitly precluded Congress from delegating (or, more precisely, re-delegating) those powers to another body.[24]

To be sure, Justice Scalia followed this explanation with a statement of the modern “intelligible principle” standard.[25] The combination of this explanation of the non-delegation doctrine with the restatement of the intelligible principle standard implies that congressional delegations satisfying that standard do not amount to delegations of actual “legislative power.” Some, including Justice Stevens in that same case, have questioned that logic. In his short concurrence in American Trucking, he called for the Court to acknowledge that constitutionally-valid delegations can nevertheless involve delegations of legislative power.[26] Some scholars have ventured even further, arguing that a statutory delegation of power, even out-and-out legislative power, is itself a legislative act that by its terms satisfies any constitutional non-delegation requirement.[27] Nevertheless, the statement Justice Scalia offered in American Trucking remains the standard explanation for the doctrine.

B. The Policy

Despite the continued existence of the non-delegation doctrine at the federal level,[28] the standard narrative of its decline (though not its death) remains essentially accurate. Today, the doctrine remains largely dormant, serving mainly as a justification for narrower statutory interpretations that thereby avoid the non-delegation issue.[29] Good reasons account for that relative decline. First, judges and scholars have long recognized that the complexity of modern regulatory issues demands a degree of substantive expertise that Congress generally lacks.[30] The problem also goes beyond expertise, to encompass concerns about Congress’s relative institutional inflexibility, which would make it difficult for it to respond nimbly and with nuance to the inevitable follow-on detail questions that arise from foundational policy decisions.[31]

These phenomena create tension between any requirement of increased congressional specificity and many progressive policy preferences. A constitutional requirement that legislation be more specific would make it more difficult for Congress to legislate.[32] This increased difficulty would flow from both the increased technical difficulty Congress would confront in making more detailed regulatory choices and the increased political difficulty it would encounter when seeking consensus on those questions. The result would likely be less legislation, and thus fewer delegations of regulatory power to agencies, completely separate from whatever would be the direct effect of the increased specificity requirement.[33] Less legislation, of course, means less regulation—a result that has a clear policy valence, usually against progressive values.

Progressives might also have reason to worry about the substance of the more detailed choices that a revived non-delegation doctrine would demand from Congress. Speaking very broadly, one might view expertise and political responsiveness as alternative justifications for administrative action. To the extent the political marketplace is thought to reflect an inappropriately strong concern for the interests of concentrated and powerful economic interests at the expense of a more diffuse public interest, progressives might prefer a decision-making forum that mitigates the worst effects of self-interested groups dominating the legislative process.[34] This dynamic leads progressives to favor the administrative model, with its public interest/technocratic focus, mandated procedural regularity and open access, and judicial review for both substantive rationality and procedural fairness. Of course, nobody familiar with the administrative process would deny the influence powerful groups exert within the bureaucracy.[35] Comparatively, however, progressives have good reason to favor agencies over Congress when allocating authority to make detailed policy choices.

Indeed, scholars have argued that the administrative process, when compared to its congressional analogue, is particularly well-suited to receive and process political inputs. For example, in a now-canonical 1985 article, Jerry Mashaw argued that the president’s ability to influence the policy choices agencies made rendered administrative action more politically accountable than legislation.[36] That seemingly counter-intuitive conclusion, in turn, renders broad statutory delegations more politically legitimate than narrower ones that leave open less room for administrative interpretation.[37] Writing a decade and a half later, then-Professor Elena Kagan echoed and amplified that point, although with qualifications.[38]

While this article has framed these pro-delegation arguments in terms of progressives’ policy preferences, the post-1937 Court has embraced analogous justifications as part of its constitutional acceptance of broad delegations. Most notably, the Court has recognized that Congress can legitimately decide that it lacks the capacity for making the sheer number of detailed and technically-complex decisions it would have to make were it forbidden from delegating many important decisions to administrative agencies.[39] An additional doctrinal reason for allowing broad delegations is the inevitable subjectivity of a judgment that a statute fails or satisfies the intelligible principle standard.[40] To be blunt, just how “intelligible” would a statute’s “principle” have to be in order to survive stringent non-delegation review? No objective metric guides such a judgment.[41] Given that reality, courts—especially those already resigned to accommodating the modern administrative state—may well have simply given up on enforcing the doctrine except as an interpretive canon militating in favor of narrow statutory interpretations, and perhaps as a guardrail preventing inappropriate delegations to private institutions.[42] Regardless of the particular reasons, it is a fair statement that, at least until now, the non-delegation doctrine’s relative modern insignificance has been part and parcel of the modern Court’s near[43] full-blown acceptance of the administrative state.[44]

And then the Court granted certiorari in Gundy.[45]

II. United States v. Gundy

A. The Background

Gundy involved a non-delegation challenge to the so-called “pre-Act offender” provision of the Sexual Offender Registration and Notification Act (SORNA).[46] Congress enacted SORNA to solve the problem of the patchwork character of state sexual offender notification laws, which Congress believed allowed convicted sexual offenders to fall-off law enforcement’s radar by moving across state lines and exploiting the states’ inconsistent registration requirements. SORNA imposed a detailed set of reporting and registration requirements on sexual offenders who were convicted after SORNA’s 2006 enactment date. However, its application to offenders convicted before that date (set forth in the law’s pre-Act offender provision) was governed by this simple—and broad—delegation of power to the attorney general: “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 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders. . . .”[47]

This authority comes uncabined by any limitations or specifications particular to it, or even any criteria guiding the attorney general’s selection of any such specifications. On its face, it seemingly allows him to apply all, none, or some of the statute’s requirements for post-enactment offenders. Indeed, in Reynolds v. United States, a 2012 case construing this authority without passing on its constitutionality, the majority suggested that it would allow him to prescribe different sets of registration and notification requirements for different categories of pre-Act offenders.[48] The Court’s decision in Reynolds that offenders were not automatically subject to federal registration and notification requirements—that is, the Court’s decision that the attorney general needed to act in order to subject pre-Act offenders to any notification requirements—led Justice Scalia, joined by Justice Ginsburg, to warn that the provision, thus construed, was “sailing close to the wind” [49] with regard to the non-delegation principle.

Despite the extraordinary breadth of the discretion the pre-Act offender provision granted the attorney general, every federal appellate court to consider the issue rejected non-delegation challenges.[50] These courts often found the requisite intelligible principle in the statute’s stated overall goal of establishing a “comprehensive” [51] sex offender registry in order to “protect the public”;[52] its specification of registration and notification requirements for offenders convicted after SORNA’s enactment date; and its identification of the attorney general as the official responsible for making decisions about the required rules in what one court described as “one of the few areas in which the Attorney General exercises discretion”—the applicability of those registration and notification requirements to pre-Act offenders.[53] Several cases also rejected calls for a more stringent standard than the intelligible principle requirement, which defendants made in light of the criminal consequences of any decisions made by the attorney general with regard to registration and notification requirements.[54]

While he was serving on the Tenth Circuit, then-Judge Neil Gorsuch twice questioned whether an interpretation of the pre-Act offender provision that made pre-Act offenders subject to federal requirements only if the attorney general so specified would (before Reynolds resolved the issue)[55] or did (after Reynolds)[56] satisfy non-delegation scrutiny. Nevertheless, it was still a surprise—indeed, “shock” would not be too strong a term—when the Court granted certiorari in Gundy and singled out Mr. Gundy’s non-delegation argument as the claim it wished to review.[57] The Court’s decision to hear the case came during a period marked by percolating uncertainty over other foundational elements of the administrative state. The Court had been signaling its discontent with Auer deference,[58] and, with the addition of Justice Gorsuch, even Chevron deference was seen as possibly ripe for a reconsideration.[59] Moreover, Justice Kavanaugh, while on the D.C. Circuit, had authored a panel opinion (vacated by the en banc court) that struck down the constitutionality of the Consumer Financial Protection Board given its status as an independent agency headed by a single person rather than a multi-member body.[60] More generally, anxiety about the Trump administration’s supposed interest in “deconstructing” the administrative state[61] caused observers to wonder whether, if the non-delegation doctrine’s demise was in fact a case of “death by association,”[62] the Court’s seeming new interest in it represented the leading edge of a resurrection of classical jurisprudence that would impose significant restrictions on the national state the New Deal built.

B. The Court’s Decision

In Gundy, a five-justice majority of an eight-justice Court[63] rejected the non-delegation argument. However, those five justices split badly in their reasoning. Writing for a four-justice plurality, Justice Kagan concluded that the pre-Act offender provision “f[ell] well within”[64] the non-delegation doctrine’s requirements. But in order to reach that conclusion, she had to conclude that the provision, as construed in Reynolds,[65] significantly limited the attorney general’s discretion regarding whether and how to apply SORNA’s requirements to pre-Act offenders. In particular, she read Reynolds as concluding that the pre-Act offender provision mandated the attorney general to require pre-Act offenders to register as soon as it was feasible, with the limited discretion implicit in the feasibility criterion simply reflecting the practical difficulties that would attend a rigid requirement that all such offenders immediately register.[66]

Justice Kagan’s plurality opinion took a well-trod path in considering, and rejecting, the non-delegation challenge. By reading the statute narrowly, as providing little discretion to the attorney general,[67] Justice Kagan was able to frame the non-delegation issue in a way that inevitably pointed toward upholding the law.[68] In so doing, her plurality opinion followed the path marked by Justice Scalia’s opinion for the majority in American Trucking. In that opinion, the Court, after rejecting the court of appeals’ suggestion that the agency itself could cure a non-delegation problem by promulgating limiting regulations, began its conventional non-delegation analysis by construing the Clean Air Act narrowly. In turn, Justice Scalia then observed that the narrower reading brought the statute within the bounds of previous non-delegation cases.[69]

But in all this conventional analysis Justice Kagan spoke only for herself and Justices Ginsburg, Breyer, and Sotomayor. Justice Alito, the fifth vote for rejecting Gundy’s argument, concurred only in the judgment.[70] He conceded that he “cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years.”[71] On that basis he “vote[d] to affirm.”[72] However, he also stated that he would support a reconsideration of “the approach we have taken for the past 84 years” (that is, since 1935) “[i]f a majority of th[e] Court were willing” do to so.[73] Given that the three dissenters in Gundy called for exactly that reconsideration, and given that Justice Kavanaugh did not participate in Gundy, Justice Alito all but invited a new non-delegation challenge in a case featuring a full court.

Justice Gorsuch was unwilling to wait.[74] In an opinion joined by Chief Justice Roberts and Justice Thomas, he delivered a rhetoric-heavy argument against the dangers to individual liberty arising from combining legislative and executive powers in a single branch.[75] When he turned to doctrine, he argued that subsequent Court opinions had transformed J.W. Hampton’s intelligible-principle standard into a much broader license for Congress to delegate power than the J.W. Hampton Court had intended.[76] He suggested that the intelligible-principle idea should be understood as simply describing rulings that had come before it. Justice Gorsuch portrayed those rulings as allowing Congress to delegate when the delegation merely: 1) required the delegee to “fill up the details” to implement a policy decision Congress had made by statute;[77] 2) required the delegee to find facts that would trigger the congressional decision that was made contingent on those findings; or 3) gave the delegee a power that it already possessed in part by virtue of its location in either the executive branch or the Article III judiciary.[78]

While this description theoretically leaves significant room for Congress to delegate, the tone of Justice Gorsuch’s dissent should worry those who favor allowing broad congressional delegations. Justice Gorsuch’s descriptions of the delegations the Court had previously upheld feature strikingly vague language that could be used against not just the arguably-standardless discretion the pre-Act offender provision provided,[79] but also more conventional economic and health legislation. At the very least, that language could seriously destabilize current doctrine and invite adventurous litigators to request, and lower court judges to apply, stringent review of foundational regulatory legislation.

III. Alternative Non-Delegation Paths

Gundy thus gives progressives reason for concern. Not so much for its result—although one can fairly question Justice Kagan’s statutory interpretation as pushing the limits of how far statutory language can be massaged to provide the guidance even the standard form of the non-delegation doctrine requires. Rather, Gundy’s far more troubling feature is the message sent by Justice Alito’s willingness to join in a fundamental reconsideration of the non-delegation principle and the potential stringency of Justice Gorsuch’s proposed alternative.[80] If Justice Kavanaugh would support such a reconsideration,[81] then the template Justice Gorsuch offered in his Gundy dissent would surely be a leading candidate for a new, more muscular version of the doctrine.

That more muscular version could threaten the type of proactive and effective regulation progressives favor. While Justice Gorsuch insisted that his understanding of the intelligible-principle standard would not cripple the administrative state,[82] that assurance presumed that Congress could muster a “social consensus”[83] on legislative policy sufficiently precise to satisfy Justice Gorsuch’s requirement that such delegations give agencies the power merely to “fill up the details”[84] or find facts.[85] Perhaps many statutory foundations of the modern regulatory state—environmental, securities, worker and product safety, and economic regulation statutes, to name but a few—could survive such scrutiny. Or perhaps not. And perhaps Chief Justice Roberts might find himself unwilling to join a bare majority of the Court in striking down these foundational laws. But today, reason for worry exists that did not before Gundy was decided.

Along with that reason for worry, however, comes an opportunity. Regardless of progressives’ concerns about a revitalized non-delegation doctrine, it is important to note and, if possible, promote the good that a modestly revived doctrine could accomplish. The first challenge arises from what a modestly revived doctrine would look like. How would such a doctrine be articulated to ensure it was more amendable to objective judicial application than any other mid-way point between the current regime and one that required courts to decide whether Congress had made every significant (or even every) policy choice? Having determined that point, what good could the resulting doctrine accomplish?

A. Standards—Of Any Sort

One way to think about crafting such a mid-way point for a non-delegation test is through the simple expedient of requiring that at least some standard accompany any delegation of power. For example, then-Judge and later Justice Gorsuch criticized SORNA’s pre-Act offender provision because it failed to provide any standard at all. In his view, the provision was a pure grant of power uncabined by any legislative principle, intelligible or otherwise.[86]

One might think that courts would find it easy to manage and apply such a constitutional requirement. But problems would immediately cloud it. First, in some situations a question might arise whether some policy judgment did in fact accompany the challenged grant of power. For example, one could conceivably view SORNA’s pre-Act offender provision as expressing a view that only sex offenders, as the statute defined the term, should be included in the group of persons the attorney general was granted the power to regulate.[87] In other words, the grant of authority itself could be viewed, if one so chose, as incorporating a value judgment by virtue of the scope of the authority it granted. But a non-delegation standard that is satisfied by the statute’s identification of the regulated group is hardly a standard at all—at least not one that would likely be acceptable to a broad coalition of justices.

Second, one could widen the focus and locate the required congressional policy judgment not in the grant of the specific authority, but in the statute as a whole. As noted earlier,[88] many appellate courts that rejected non-delegation challenges to SORNA’s pre-Act offender provision cited the statute’s overall goals, stated (quite broadly and cursorily) in its introduction. Those goals—to “establish[ ] a comprehensive national system for the registration of sex offenders,” “[i]n order to protect the public from sex offenders and offenders against children”[89]—apply to SORNA in its entirety. Justice Kagan relied heavily on that introductory purpose when finding a standard that sufficiently cabined the attorney general’s discretion, rejecting Gundy’s claim that the requisite standard had to be “tied” to the specific grant of authority over pre-Act offenders.[90]

Whether those broad statutory purposes adequately cabin the attorney general’s discretion to impose registration requirements on pre-Act offenders is not a question that can be answered objectively. That subjectivity is a problem. It is hard to imagine any federal statute of any significance that lacks a preliminary statement of its general goals. If one accepts such statements as furnishing principles governing every delegation of power the statute accomplishes, then either nearly every statute necessarily satisfies this supposedly-strengthened non-delegation review or we are thrown back into the subjective “how intelligible does the principle have to be?” inquiry.[91] The first of these possibilities again fails to provide a meaningful standard that might form the basis of a consensus among the justices, while the latter introduces a troubling elasticity that could be used against important regulatory legislation.

But neither would it be satisfactory to require standards and criteria—of any sort—to explicitly accompany each individual statutory grant of power. Given the vast number of specific subjects in any major piece of legislation, and the equally large number of statutory directives for agency action, a requirement that each such directive be accompanied by its own standard(s) would mean either that Congress would have to go through the meaningless formality of including in each such directive a reference to the statute’s overall goals, or that it prescribe unique standards for each such grant. The former would constitute a pointless formality, while the latter could easily hamstring Congress’s ability to delegate statutory-implementation decisions to agencies, by requiring Congress to specify standards and criteria for every grant of delegated power, however trivial.[92]

This is not an auspicious start for a revived non-delegation doctrine that promises to do something, but not too much, and to do it in a judicially-manageable way.

B. Different Directives/Different Requirements

Given the difficulties attending any focus on the standards themselves, an alternative approach would focus on the nature of the authority Congress delegates. The Court itself has acknowledged the relevance of this factor for non-delegation analysis. In American Trucking, Justice Scalia wrote that “[i]t is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.”[93] Justice Scalia used the example of the Clean Air Act’s conferral of authority on the EPA to define “country elevators” that would be exempt from the pollution control requirements otherwise governing grain elevators—a grant, he implied, that was sufficiently trivial to not require the same level of statutory specificity that would be required for grants of more far-reaching power.[94] Justice Scalia’s statement suggests that a grant of power to an agency to wield an unusually broad or fraught power might require comparatively more precise standards.

Nevertheless, Justice Scalia’s seemingly common sense observation that the more trivial the delegation the fewer standards that should be required threatens to devolve into yet another round of subjective judicial decision-making, now focusing on both how trivial a given delegation is and how standardless such a delegation can be.[95] But when one looks more closely at the two cases he cited for that observation, a surer path emerges; Loving v. United States[96] and United States v. Mazurie[97] stand for the proposition that Congress is allowed to provide less of a standard when delegating to an entity (in both of these cases, the president) who possesses some measure of independent constitutional authority to act in that area.[98]

Combining Justice Scalia’s statement in American Trucking and the statements in the cases he cited to support it, one can glean the outlines of a claim that more specific standards should apply when the delegee—for example, in Gundy, the attorney general—is granted authority that is inconsistent with one of his constitutionally-mandated functions, and thus creates a constitutional anomaly.[99] In Gundy, this approach would have required Congress to specify standards for the attorney general’s use of the discretion that the pre-Act offender provision gives him because that discretion—to specify who would be criminally liable under what circumstances—stands in serious tension with his constitutional authority to enforce the laws.[100]

This suggestion is related to, but distinct from, the claim that the delegated power to declare criminal liability—or any liability that would effectively impair one’s fundamental liberty—must be accompanied by unusually specific statutory standards. This latter claim is substantial in its own right. It grounded Justice Brennan’s contention in United States v. Robel that a statutory grant of discretion to the Department of Defense to specify those workplaces sensitive enough to require dismissals of employees who belonged to the Communist Party had to include more standards than normally required under the non-delegation doctrine.[101] Liberty concerns appeared, as well, to be at least one of the motivations behind Justice Douglas’s dissent in United States v. Sharpnack. Justice Douglas, joined by Justice Black, would have found a non-delegation violation in a federal law that incorporated the criminal law of the state surrounding any federal enclave as the law of that enclave, even as that state law evolved in the future.[102] In 1991, the Court acknowledged that it had not definitively resolved whether a delegated power to declare conduct criminal requires more by way of legislative standards.[103]

Still, these latter arguments focus on the importance of the right simpliciter. By contrast, the claim currently on the table maintains that what is relevant is the incongruousness of the grant—in Gundy, the grant to a law-enforcer to make the law that he would then be empowered to enforce. To be sure, that incongruousness implicates the liberty concerns that motivated the framers to separate powers: If the combination of powers risks tyranny, presumably that risk is magnified when the combined powers are those to declare what shall be criminal and enforce that criminal prohibition.[104] But nonetheless it is a worry distinct from the pure liberty concern that drove Justice Brennan.

Several insights justify this proposal that more specific standards must accompany delegations of incongruous power to an administrative agency. First, such delegations involve grants of power to entities that have no plausible justification for free-standing authority in that area. For example, a delegation to a law-enforcer such as the attorney general to declare the substance of criminal law is a delegation to a person lacking any plausible claim to any part of that power except for the delegation itself. One can contrast such a delegation to the one in Loving. That delegation authorized the president to make rules dealing with military justice—a congressional delegation on an issue on which the Court recognized some measure of independent, Article II-based, presidential authority, a fact the Court recognized as relevant to the non-delegation analysis.[105] By contrast, the lack of any independent authority for the attorney general to declare the substance of criminal liability might justify a requirement of increased congressional specificity. This would ensure that the delegee’s role is truly limited to implementing the legislature’s will, in a context in which the Constitution, by hypothesis, clearly denies the delegee any claim that his conduct rests on free-standing constitutional authority.[106]

At this point it becomes appropriate to incorporate into the analysis the concern that motivated Justice Brennan in Robel and to recognize that this proposal would have an impact on delegations implicating serious individual liberty concerns. As such, it is justified by functional considerations about the most appropriate locus for decisional authority in matters implicating liberty. Justice Souter recognized those functional considerations in his concurring and dissenting opinion in Hamdi v. Rumsfeld.[107] In Hamdi, Justice Souter disagreed with the majority’s conclusion that the post-9/11 Authorization for Use of Military Force (AUMF) constituted the congressional authorization to detain U.S. citizens that an earlier statute[108] had required for such detentions. Explaining his insistence that such congressional authorization be explicit, he wrote that,

deciding finally on what is a reasonable degree of guaranteed liberty . . . is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. . . . A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that ‘the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights.’ Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.[109]

For Justice Souter, then, the incongruousness of a delegation to the president of the power to deprive a citizen of liberty—a delegation the government claimed Congress made in the AUMF—raised particular concerns not because of the lack of any independent Article II-based authority over the subject, but because of the reality that the executive could not be trusted to resolve the “constant tension between security and liberty, serving both by partial helpings of each.”[110]

To be sure, in Hamdi Justice Souter was dealing with a question of statutory authorization—whether the AUMF furnished the statutory authority a previous statute required in order to justify detentions of American citizens—rather than a question of statutory specification—whether a statutory delegation sufficiently guides the delegee’s actions. But his insistence that that authorization be clear rested on a concern that also speaks to the requirement of statutory specification. The parallel insistence on both congressional clarity and precision reflects the realization that the executive branch, as the nation’s law enforcer, cannot be trusted appropriately to balance liberty and security. In both cases, Congress must “resol[ve] . . . the competing claims,” by providing either clear statutory authority (Hamdi) or reasonably precise statutory standards (Gundy).

Concededly, when confronted with a non-delegation claim focusing on the alleged unconstitutionality of Congress delegating criminal law-declaring power to the attorney general, the Court rejected it.[111] Interestingly, though, the Court did not reject the somewhat related argument that delegations of criminal law-declaring power should be reviewed pursuant to more stringent non-delegation standards.[112] Given Justice Gorsuch’s heavy focus on both the liberty implications of a toothless non-delegation doctrine[113] and the incongruity argument,[114] the way may be open for a consensus among the justices that would insist on increased statutory specificity when a delegation directly implicates liberty concerns by placing criminal law-declaring power in the hands of a law enforcer. After all, if a future majority does indeed reconsider the basics of non-delegation, there’s no reason the Court’s rejection of this latter principle should be immune from reconsideration.

C. To the Border and Beyond

This approach, of course, would have directly applied to Gundy. (Indeed, the application of this approach sketched out above focuses heavily on the situation Gundy presented.) Failure to comply with whatever registration and notification requirements the attorney general might impose under the pre-Act offender provision subjects pre-Act offenders to significant criminal penalties. As explained earlier, that fact should matter in any nondelegation challenge, given the doctrine’s foundation in the liberty-impairing potential of combined powers. The incongruousness of delegating such criminal law-declaring power to a law enforcer only increases the separation-of-powers anxiety in SORNA’s particular context. But legitimate concerns about overbroad delegations potentially extend farther.

It is by now broadly acknowledged that the Trump administration has shattered many heretofore widely accepted governance norms. One area where the current administration has distinguished itself from its predecessors is in its unusually aggressive use of emergency declarations to achieve policy goals in situations that feature only tenuous claims to constituting real emergencies, sometimes in the teeth of direct congressional rejection of those policies. Congressional oversight over the current omnibus authorization to declare emergencies—the National Emergencies Act (NEA)—has been crippled by Congress’s failure to replace the legislative veto that, before such tools were struck down by the Court in INS v. Chadha,[115] was its primary mechanism for restraining inappropriate presidential emergency declarations.[116]

Enthusiastic use of the power delegated by the NEA would allow the president to become a de facto lawmaker, ruling by decree. To be sure, one cannot fairly describe the current situation in such terms. But the president’s use of the NEA power, and analogous powers under other statutes, raises serious questions whether Congress should—or should be constitutionally compelled to—impose conditions on such open-ended delegations of power to bypass the legislative process and make federal government policy on his own.[117] To be sure, Congress can solve any problems caused by such open-ended delegations simply by amending the relevant statutes, or, more speculatively, by insisting on controls of currently doubtful constitutionality, such as legislative vetoes, and inviting legal challenges.[118] But the existence of political pathologies preventing such congressional action is the entire reason the nondelegation doctrine has been deployed to begin with. If the current president’s willingness to press his emergency powers to the brink becomes the new normal in the post-Trump era, and if Congress remains unable or unwilling to shoulder its policy-making responsibility, then the resulting presidential lawmaking may trigger additional calls to resurrect a meaningful non-delegation principle.

IV. Toward a Non-Delegation Doctrine (Even) Progressives Could Like?

The above analysis sketches out the vague outlines of a non-delegation doctrine that progressives might find at least tolerable and perhaps even welcome. But even the likelihood of the former, more tepid of these two reactions justifies progressives taking a closer look at the non-delegation issue. The signal sent by four of the conservative justices in Gundy, and the possibility that Justice Kavanaugh might endorse it, alters the field on which progressives must fight the battle for an administrative state capable of confronting modern regulatory challenges. But that fight could be more than a defensive action if an approach to non-delegation can be developed that would serve progressive ends not just regarding the appropriate powers of government but also the appropriate protections for personal liberty. Such a program could conceivably become a consensus position on the Court, especially if Chief Justice Roberts decides that he’d prefer not to preside over a Court that, by five-to-four majorities, strikes down broad swaths of the administrative state—i.e., a Court that resembles its predecessor circa 1935.

This consensus position could feature several components. First, it could emphasize the importance of liberty concerns when congressional delegations threaten to combine legislative and executive power in particularly fraught contexts. Given Justice Gorsuch’s emphasis on this aspect of the issue, both in his Gundy dissent[119] and his discussion of SORNA while on the Tenth Circuit,[120] this aspect of the non-delegation calculus could easily appeal to justices on both wings of the Court.[121] This focus would have the subsidiary benefit of turning attention away from the less liberty-implicating delegations that comprise the bread and butter of the modern regulatory state, including both economic regulation and the health and safety regulations that rose to prominence in the 1960s and 1970s and remain prevalent today.

That position could also focus on the extent to which the delegation reflects a functional congruence with the free-standing Article II powers the delegee already possesses. This element of a modified approach to non-delegation issues reflects the necessarily functional nature of any coherent approach to non-delegation, given the well-recognized (including by Justice Gorsuch)[122] impossibility of precisely distinguishing between policy-making and policy-implementation. It also has the benefit of constraining extravagant presidential claims of power over spending, given Article I’s clear grant of authority to Congress, not the president, to appropriate money.[123] In a presidency marked by attempts to reshuffle appropriations to suit the president’s own preferred policies, an insistence, via the non-delegation doctrine, that Congress limit blank-check grants of such purely legislative power to the president may have salutary effects, both in the short term and, if such an insistence disciplines Congress, going forward.

At the same time, a focus on the compatibility of a broad delegation with the delegee’s free-standing constitutional authority could buttress, rather than limit, Congress’s power to delegate if challenged delegations could be seen as implicating the executive’s inherent expertise and flexibility in implementing complex regulatory schemes—that is, the executive’s power to execute the laws. In other words, a focus on the congruence between the delegation and the inherent authority and expertise of the delegee could help immunize regulatory delegations of the type the modern federal government relies on to accomplish progressive regulatory ends.

This idea finds very approximate analogues in existing separation-of-powers doctrine. Recall Stern v. Marshall.[124] In that case, Chief Justice Roberts applied a highly formalistic separation-of-powers analysis in the course of striking down a delegation of adjudicative authority to Article I bankruptcy courts. But in so doing, he distinguished the far more relaxed analysis set forth in Commodity Futures Trading Commission v. Schor,[125] on the ground that the agency in Schor had been given broad, expertise-based regulatory power over the field of commodities transactions.[126] Thus, the expertise-based delegation in Schor justified a more relaxed separation-of-powers analysis. The same might also hold true in the legislative non-delegation context, when the delegations in question require complex, expertise-grounded judgments we normally think of when we think of implementation of complex regulatory schemes. Indeed, even Justice Gorsuch’s Gundy dissent conceded that the Court “has upheld statutes that allow federal agencies to resolve even highly consequential details so long as Congress prescribes the rule governing private conduct”[127] without casting doubt on those precedents. To the extent that filling in such “highly consequential details” reflects implementation of a statutory mandate, an analysis focused on this sort of congruence buttresses such delegations as consistent with Article II entities’ core functions. Such delegations, of course, are the exact sort progressives should be most concerned with protecting.

***

To be clear, this proposal is far from perfect. But, even from a progressive standpoint, broad delegations of power are also imperfect, unless one possesses either the naive faith in the administrative state or the skepticism of classic conceptions of individual liberty more reminiscent of progressives of 1935 than progressives of 2019.[128] And again, at the very least, the winds blowing from the Supreme Court render it prudent for progressives to start thinking seriously about the kind of non-delegation doctrine they could live with, not the kind of non-delegation doctrine they would embrace if given the luxury of complete choice in the matter.

Araiza is a Professor of Law at Brooklyn Law School. Thanks to Louis Virelli for comments on an earlier draft of this article. Thanks also to Catherine Cazes, Cody Laska, and Izaak Orlansky for fine research assistance. The author submitted an amicus brief in United States v. Gundy. See infra note 79.

[1] See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 133 (1980) (stating that the decline of the non-delegation doctrine after 1935 was a case of “death by association” with the Court’s struggle against the New Deal).

[2] See, e.g., Cass Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 482 n.298 (1987) (“The demise of the nondelegation doctrine has been described [by Professor Ely] as a ‘death by association,’ but the description is misleading.”) (internal citation omitted); see also Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000) [hereafter Sunstein, Nondelegation] (“[i]t is . . . misleading to suggest that the nondelegation doctrine was a well-entrenched aspect of constitutional doctrine, suddenly abandoned as part of some post-New Deal capitulation to the emerging administrative state.”); cf. Ely, supra. note 1 (quoting Professor Ely).

[3] See, e.g., Nadja Popovich, America’s Skies Have Gotten Clearer, but Millions Still Breathe Unhealthy Air, N.Y. Times (June 19, 2019) (attributing the increased healthfulness of American air to four decades of federal air pollution regulation).

[4] United States v. Gundy, 695 F. App’x 639 (2d Cir. 2017), cert. granted¸ 86 U.S.L.W. 3438 (U.S. Mar. 5, 2018) (No. 17–6086).

[5] Among other issues, judges and justices have questioned the deference that agencies enjoy when they interpret their own regulations. Compare, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019) (majority opinion) (reaffirming, within limits, such deference), with id. at 2425 (Gorsuch, J., concurring, joined by Thomas and Kavanaugh, JJ. and in relevant part by Alito, J.) (calling for the overruling of the case mandating such deference). They have also questioned the “Chevron” deference agencies enjoy when they interpret their authorizing legislation. See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (“Given the concerns raised by some Members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”) (citations omitted); PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1 (D.C. Cir. 2016) (Kavanaugh, J.) (holding unconstitutional an independent agency because of its leadership structure), vacated, 881 F.3d 75 (D.C. Cir. 2018) (en banc).

[6] See Gundy v. United States, 139 S. Ct. 2116, 2121 (2019).

[7] See id. at 2130 (Alito, J., concurring ).

[8] See id. at 2131 (Gorsuch, J., dissenting, joined by Roberts, C.J. and Alito and Thomas, JJ.).

[9] The potential fifth justice, Justice Kavanaugh, did not participate in Gundy. See id. at 2130. Whether he would be willing to participate in such a reconsideration is unclear. See In re Aiken County, 645 F.3d 428, 442 (D.C. Cir. 2011) (Kavanaugh, J., concurring) (describing Schechter and Panama Refining as “discarded . . . relics of an overly activist anti-New Deal Supreme Court”).

[10] Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 543 (1981) (Rehnquist, J., dissenting joined by Burger, C.J.); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 671 (1980) (Rehnquist, J., dissenting).

[11] See infra text accompanying notes 101–102.

[12] See, e.g., Roundup: Trump Era Deregulation in the Courts, Inst. for Pol’y Integrity, (last updated July 12, 2019) (finding, as of June 13, 2019, that Trump administration attempts to roll back regulations have failed in over ninety percent of the court challenges filed in response).

[13] To be sure, a surprising number of the current administration’s regulatory losses in court have derived from the agency’s own procedural incompetence. See, e.g., Becerra v. U.S. Dep’t of Interior, 276 F. Supp. 3d 953 (N.D. Cal. 2017) (holding that the agency violated the Administrative Procedure Act by failing to seek public comment on the proposed delay of a rule). But even such procedural missteps can trace their origins, at least in part, to inconvenient (to the administration) mandates that have prompted the ill-fated procedural moves.

[14] See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (laying out and defending the phenomenon she calls “presidential administration,” which involves unusually close direction of the administrative process by the president, and which she identifies with the governing style prevalent during the Clinton administration).

[15] United States v. Robel, 389 U.S. 258, 269 (1967) (Brennan, J., concurring).

[16] Sunstein, Nondelegation, supra. note 2, at 322.

[17] See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).

[18] See Ely, supra note 1. Whether the converse is true—that is, whether the doctrine’s rise was similarly a function of the Court’s commencement of a struggle against the New Deal—is a difficult question. Cass Sunstein deems it worthy of note that 1935 marked the first uses of the non-delegation doctrine to strike down a federal law, despite “a number of previous opportunities.” Sunstein, Nondelegation, supra note 2, at 322. Thus, he states that “[i]t is . . . misleading to suggest that the nondelegation doctrine was a well-entrenched aspect of constitutional doctrine, suddenly abandoned as part of some post-New Deal capitulation to the emerging administrative state.” Id. On the other hand, from the early years of the Republic, the Court considered challenges that have since been understood as raising non-delegation issues. See, e.g., William D. Araiza, Constitutional Law: Cases, Approaches, and Applications 153–154 (Carolina Academic Press 2016) (briefly discussing some of these cases). A resolution of this question is unnecessary to this article’s argument and is thus bracketed.

[19] Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936). To be sure, some scholars question whether Carter Coal was really a decision based on the non-delegation doctrine. See, e.g., Alexander Volokh, The Shadow Debate Over Private Delegation in DOT v. Association of American Railroads, 2015 Cato Sup. Ct. Rev. 359 (2014–2015).

[20] Justice Roberts joined the majority opinion. Chief Justice Hughes concurred separately in Carter Coal, but he agreed with the majority’s conclusion on the non-delegation issue. See Carter Coal, 298 U.S. at 317–18 (Hughes, C.J., concurring) (“I . . . agree [with the majority] that subdivision (g) of part 3 of the prescribed [coal] Code is invalid upon three counts: (1) It attempts a broad delegation of legislative power to fix hours and wages without standards of limitation. . . .”) (citation omitted).

[21] See, e.g., Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 543 (1980) (Rehnquist, J., dissenting, joined by Burger, C.J.); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 671 (1980) (Rehnquist, J., concurring); Nat’l Cable Television Ass’n, Inc. v. United States, 415 U.S. 336 (1974). In Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001), the Court embraced a narrower reading of the relevant statutory language, which then allowed it to uphold the law against a non-delegation challenge, although the Court did not explicitly state that that narrower construction was compelled by the prospect of a non-delegation strike-down.

[22] Cf. Sunstein, Nondelegation, supra note 2, at 315 (“Reports of the death of the nondelegation doctrine have been greatly exaggerated. Rather than having been abandoned, the doctrine has merely been renamed and relocated.”).

[23] American Trucking, 531 U.S. at 472.

[24] Again, this explanation is not merely idiosyncratic to Justice Scalia. See, e.g., Gundy v. United States, 139 S. Ct. 2116, 21–33 (Gorsuch, J., dissenting) (“Through the Constitution . . . the people had vested the power to prescribe rules limiting their liberties in Congress alone. No one, not even Congress, had the right to alter that arrangement.”); see also, e.g., Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2104 (2004) (“One significant recent development is that the nondelegation doctrine has become firmly implanted in the Vesting Clause of Article I.”).

[25] See American Trucking, 531 U.S. at 472 (“Article I, § 1, of the Constitution vests ‘[a]ll legislative Powers herein granted . . . in a Congress of the United States.’ This text permits no delegation of those powers, and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’ J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).”).

[26] See id. at 487 (Stevens, J., concurring in part and concurring in the judgment).

[27] See Eric Posner & Adrian Vermeule, Interring the Non-Delegation Doctrine, 69 U. Chicago L. Rev. 1721, 1723 (2002). To be clear, Posner and Vermeule do argue that “[n]either Congress nor its members may delegate to anyone else the authority to vote on federal statutes or to exercise other de jure powers of federal legislators.” Id.

[28] By contrast to its desuetude at the federal level, according to two scholars the doctrine is alive and well in state constitutional law. See Keith Whittington & Jason Iuliano, The Nondelegation Doctrine: Alive and Well, 93 Notre Dame L. Rev. 619 (2017).

[29] See cases cited supra note 21.

[30] See, e.g., Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2151–52 (2004) (“Perhaps the argument most commonly invoked in support of broad delegation is the desirability of having policy formulated by persons who have expertise in the subject matter. Administrative agencies typically have large professional staffs, protected by civil service laws, who have specialized training and extensive experience with particular regulatory issues. Congress has a much smaller staff, which tends to be selected under pressure from interest groups and party members rather than on the basis of expertise. Thus, to the extent we want policy made by persons who know what they are doing, it is better that policymaking be centered in the administrative agencies rather than in Congress.”) (footnote omitted). It remains true that Congress could theoretically create an expertise capacity for itself. But such an expert institution, presumably advising Congress, would simply raise the question of representatives’ ability to make appropriate use of such expert information. See sources cited infra note 31.

[31] See Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946) (“The legislative process would frequently bog down if Congress were constitutionally required to appraise before-hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules. . . .); see also, e.g., Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1695 (1975) [hereafter Stewart, Reformation] (“Detailed legislative specification of policy would require intensive and continuous investigation, decision, and revision of specialized and complex issues. Such a task would require resources that Congress, has, in most instances, been unable or unwilling to muster.”) (emphasis added); Merrill, supra note 30, at 2153 (“Closely associated with expertise, but conceptually distinct, is the idea that broad delegation is necessary if government is to realize the ambitious agenda it has set for itself. The focus here is not on the technical complexity of issues, but the scale of government operations.”).

[32] See sources cited supra note 31.

[33] See, e.g., Merrill, supra note 30, at 2146 (“Strict nondelegation . . . would impose a significant chokehold on federal policymaking relative to current arrangements and would constrict the total volume of new federal regulation.”); Richard B. Stewart, Beyond Delegation Doctrine, 36 Am. U. L. Rev. 323, 331 (1987) [hereafter Stewart, Beyond Delegation] (“[R]equiring that all regulatory statutes contain detailed rules of conduct would increase substantially the costs and difficulty of legislative agreement and greatly reduce the amount of legislation enacted.”).

[34] Indeed, the effect may be even greater to the extent that a requirement of more detailed legislation would likely increase the importance of the relevant congressional committees, which would serve as even more convenient forums for concentrated interest group rent-seeking. See, e.g., Stewart, Reformation, supra note 31, at 1695–96 (suggesting this possibility); Stewart, Beyond Delegation, supra note 33, at 331–32 (making this suggestion more explicitly).

[35] See, e.g., Theodore Lowi, The End of Liberalism 87–89 (1969).

[36] Jerry Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J. L., Econ., & Org. 1 (1985).

[37] See Kagan, supra note 14, at 2333 (“In defending broad delegations, [Professor] Mashaw contended that more extensive bureaucratic, as opposed to legislative, decisionmaking actually would improve the connection between governmental action and electoral wishes.”).

[38] See id. at 2331–37.

[39] See, e.g., Am. Power & Light Co. v. SEC, 329 U.S. 90 (1946); Yakus v. United States, 321 U.S. 414, 424 (1944) (“The Constitution as a continuously operative charter of government does not demand the impossible or the impracticable. It does not require that Congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate.”).

[40] See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474–75 (2001) (stating that the Court has “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law”) (internal quotation omitted).

[41] See, e.g., Stewart, Reformation, supra note 31, at 1696–97 (noting this difficulty); see also Stewart, Beyond Delegation, supra note 33, at 325 (reviewing the previously cited source thirteen years later and finding that the “reasons why I believed that the difficulties in devising a satisfactory jurisdical [sic] answer to [the question ‘[h]ow much delegation is too much?’] [were] virtually insurmountable . . . [and] seem to me as strong or even stronger today”); Merrill, supra note 30, at 2156–57 (“The basic problem is that the partisans of strict nondelegation have been unwilling to say that all legislative rulemaking by executive branch agencies is unconstitutional. . . . The result is that strict nondelegation partisans are forced to draw a line within a general phenomenon—agency legislative rulemaking—past which there is too much discretion, too much controversy, too much importance, etc., to allow the agency to make the judgment alone.”).

[42] See Dep’t of Transp. v. Ass’n of Am. R.R.s, 135 S. Ct. 1225, 1237–38 (2015) (Alito, J., concurring) (expressing particular concern about delegations to private entities).

[43] But see INS v. Chadha, 462 U.S. 919, 985–87 (1983) (White, J., dissenting) (disagreeing with the majority’s decision striking down the legislative veto, given Justice White’s understanding that the legislative veto had come to play a crucial role in the modern administrative state, especially considering the phenomenon of broad congressional delegations to administrative agencies).

[44] See, e.g., M. Elizabeth Magill, The Revolution That Wasn’t, 99 Nw. L. Rev. 47, 68 (2004) (identifying as a subject of study “the [Supreme] Court's acceptance [during the Rehnquist Era] as a constitutional matter of the administrative state”); Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 702 (2012) (concluding that the Court’s willingness, in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), to assume the independence of the commissioners of the Securities and Exchange Commission led to a situation in which “the Court's opinion wound up . . . seeming completely to accept the constitutional validity of the modern administrative state”).

[45] United States v. Gundy, 695 F. App’x 639 (2d Cir. 2017), cert. granted¸ 86 U.S.L.W. 3438 (U.S. Mar. 5, 2018) (No. 17–6086).

[46] 34 U.S.C. § 20901 et seq.

[47] 34 U.S.C. § 20913(d).

[48] See Reynolds v. United States, 565 U.S. 432 (2012), 440–41 (“[P]ractical problems arising when the Act sought to apply the new registration requirements to pre-Act offenders . . . might have warranted different federal registration treatment of different categories of pre-Act offenders.”).

[49] Reynolds, 565 U.S. at 450 (Scalia, J., dissenting).

[50] United States v. Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014), rev’d on other grounds, 136 S. Ct. 1113 (2016); United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014); United States v. Cooper, 750 F.3d 263, 271–72 (3d Cir. 2014); United States v. Goodwin, 717 F.3d 511, 516–17 (7th Cir. 2013); United States v. Kuehl, 706 F.3d 917, 920 (8th Cir. 2013); United States v. Sampsell, 541 F. App’x 258, 259–60 (4th Cir. 2013); United States v. Parks, 698 F.3d 1, 7–8 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92–93 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 262–64 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212–14 (11th Cir. 2009). To be sure, at times individual judges—not to mention Justice Scalia, joined by Justice Ginsburg—had suggested that SORNA’s pre-Act offender provision raised serious non-delegation concerns. See, e.g., Reynolds, 565 U.S. at 450 (Scalia, J., dissenting) (arguing that Congress's decision to “leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals” was “sailing close to the wind with regard to the principle that legislative powers are nondelegable”); United States v. Fuller, 627 F.3d 499, 511 (2d Cir. 2010) (Raggi, J., concurring) (“The Attorney General could simply flip a coin, and thereby make the more than 500,000 persons convicted of sex offenses before July 27, 2006, subject to SORNA's registration requirements—or not.”); United States v. Hinckley, 550 F.3d 926, 948 (10th Cir. 2008) (Gorsuch, J., concurring) (commenting on the attorney general's “unfettered discretion to determine both how and whether SORNA [is] to be retroactively applied”) (alteration in original) (quoting United States v. Madera, 528 F.3d 852, 858 (11th Cir. 2008) (per curiam)) (all cited in United States v. Cotonuts, 633 F. App’x 501, 538 (10th Cir. 2016)); see also United States v. Nichols, 784 F.3d 666, 667 (Gorsuch, J., dissenting from denial of rehearing en banc); id. at 667 (Lucero, J., dissenting from denial of rehearing en banc) (expressing agreement with then-Judge Gorsuch in that same case). It is true that some of these decisions were handed down before Reynolds established the discretionary nature of registration requirements for pre-Act offenders. Thus, some of these non-delegation challenges were rejected under a circuit court regime in which the attorney general had no discretion whether to require pre-Act offenders to register, and if so, how. But some of these cases post-date Reynolds.

[51] 34 U.S.C. § 20901.

[52] Id.; see also United States v. Terrell, 632 Fed. Appx. 881, 883 (8th Cir. 2015) (acknowledging that the court in Kuehl found an intelligible principle in the fact that “one of the Act's purposes is to ‘establish[ ] a comprehensive national system for the registration’ of sex offenders ‘[i]n order to protect the public from sex offenders and offenders against children. . . .’” (quoting 42 U.S.C. § 16901)); Nichols, 715 F.3d at 1231 (citing and relying on Kuehl); Richardson, 754 F.3d at 1145 (adopting a similar approach based on earlier circuit court opinions adopting that approach); Cooper, 750 F.3d at 271–72 (similar); United States v. Rogers, 468 F. App’x 359, 362 (4th Cir. 2012) (relying on the statute’s overall statement of purpose as providing the required intelligible principle); Whaley, 577 F.3d at 263–64 (same). Other courts have employed much more summary reasoning. See, e.g., Felts, 674 F.3d at 606 (“[I]n light of post-New Deal cases . . . Congress’s delegations under SORNA possess a suitable ‘intelligible principle’ and are ‘well within the outer limits of [the Supreme Court's] nondelegation precedents.’”) (citations omitted; second set of brackets in original); Guzman, 591 F.3d at 93 (relying on the fact that the authority delegated to the attorney general involved “the limited class of individuals who were convicted of covered sex offenses prior to SORNA's enactment”).

[53] Goodwin, 717 F.3d at 516; see also, e.g., Ambert, 561 F.3d at 1214 (similar).

[54] See, e.g., Cooper, 750 F.3d at 270–71.

[55] See Hinckley, 550 F.3d at948 (Gorsuch, J., concurring).

[56] See United States v. Nichols, 784 F.3d 666, 668 (10th Cir. 2015) (en banc) (Gorsuch, J., dissenting from denial of rehearing en banc).

[57] See United States v. Gundy, 695 F. App’x 639 (2d Cir. 2017), cert. granted¸ 86 U.S.L.W. 3438 (U.S. Mar. 5, 2018) (No. 17–6086) (granting cert. limited to the non-delegation issue).

[58] Compare Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019) (reaffirming, within limits, such deference), with id. at 2425 (Gorsuch, J., concurring, joined by Thomas and Kavanaugh, JJ. and in relevant part by Alito, J.) (calling for the overruling of the case mandating such deference).

[59] See, e.g., Eric Citron, The Roots and Limits of Gorsuch’s Views on Chevron Deference, SCOTUSblog (Mar. 17, 2017, 11:26 AM)(discussing the views Justice Gorsuch expressed on Chevron during his tenure on the Tenth Circuit); see also Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (calling for a reconsideration of Chevron “[g]iven the concerns raised by some Members of this Court”).

[60] PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2016) (Kavanaugh, J.) (holding unconstitutional an independent agency because of its leadership structure), vacated, 881 F.3d 75 (D.C. Cir. 2018) (en banc).

[61] See, e.g., We the People, Deconstructing the Administrative State, Nat’l Const. Ctr. (Nov. 2, 2017).

[62] See sources cited supra notes 1–2.

[63] Justice Kavanaugh did not participate. See Gundy v. United States, 139 S. Ct. 2116, 2130 (2019).

[64] Id. at 2124.

[65] Reynolds v. United States, 565 U.S. 432 (2012). For an explanation of Reynolds, see text accompanying supra notes 47–49.

[66] While the Gundy plurality concluded that Reynolds had indeed settled on this understanding of the statute, see Gundy, 139 S. Ct. at 2124–26, it went on to provide additional reasons for adopting that understanding. See id. at 2126–29; see also id. at 2125–26 (“[A]s the next part of this opinion shows, in somewhat greater detail than Reynolds thought necessary, we read the statute in the same way [as Reynolds did].”); id. at 2129 (after considering the statutory interpretation question in more detail, “[w]e thus end up, on close inspection of the statutory scheme, exactly where Reynolds left us”).

[67] Cf. id. at 2123 (plurality opinion) (explaining that “a nondelegation inquiry always begins (and often almost ends) with statutory interpretation”).

[68] Cf. id. (plurality opinion) (“The [pre-Act offender] provision, in Gundy’s view, grants the Attorney General plenary power to determine SORNA’s applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time. If that were so, we would face a nondelegation question. But it is not.”) (internal quotation and citation omitted).

[69] See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 473 (2001) (“We agree with the Solicitor General that the text of § 109(b)(1) of the [Clean Air Act] at a minimum requires that ‘[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air.’ Requisite, in turn, ‘mean[s] sufficient, but not more than necessary.’ These limits on the EPA's discretion are strikingly similar to the ones we approved in Touby v. United States, 500 U.S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was ‘necessary to avoid an imminent hazard to the public safety.’ They also resemble the Occupational Safety and Health Act of 1970 provision requiring the agency to ‘set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health’—which the Court upheld in Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U.S. 607 (1980).”) (citations and parallel case citations omitted).

[70] See Gundy, 139 S. Ct. at 2130 (Alito, J., concurring in the judgment).

[71] Id. at 2131.

[72] Id.

[73] Id.

[74] See id. (Gorsuch, J., dissenting) (“Justice Alito supplies the fifth vote for today’s judgment and he does not join either the plurality’s constitutional or statutory analysis, indicating instead that he remains willing, in a future case with a full Court, to revisit these matters. Respectfully, I would not wait.”).

[75] See id. at 2133–45.

[76] See id. at 2138–39 (“This Court first used th[e intelligible principle] phrase in 1928 in J. W. Hampton, Jr., & Co. v. United States, where it remarked that a statute ‘lay[ing] down by legislative act an intelligible principle to which the [executive official] is directed to conform’ satisfies the separation of powers. No one at the time thought the phrase meant to effect some revolution in this Court's understanding of the Constitution.”) (footnote omitted; first set of brackets added).

[77] See id. at 2136 (Gorsuch, J., dissenting).

[78] See id. at 2136–39.

[79] The author of this article submitted an amicus brief in Gundy, arguing that the Court could find the pre-Act offender provision to violate the non-delegation doctrine using the prevailing doctrinal standard and without disturbing any precedents. See Brief of William D. Araiza and 14 Other Constitutional, Criminal, and Administrative Law Professors as Amici Curiae in Support of Petitioner, Gundy v. United States, 139 S. Ct. 2116 (2019) (No. 17–6086), 2018 WL 2733950.

[80] Justice Alito wrote that “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Gundy, 139 S. Ct. at 2131 (Alito, J., concurring). Presumably, he would include himself in the number of justices needed to make a majority—that is, presumably he would “join four” to embark on such a reconsideration. If instead he literally means that he would “support” an effort made by “a majority of the Court” to reconsider its non-delegation jurisprudence—that is, if he would “join five” in such an effort—then the threat his opinion poses is much reduced, given the willingness of four justices to adhere to the standard approach exemplified by Justice Kagan’s plurality opinion. See Michael Herz, Symposium: In “Gundy II,” Auer Survives By a Vote of 4.6 to 4.4, SCOTUSblog (June 27, 2019, 11:30 AM) (presuming the “join four” understanding of Justice Alito’s language).

[81] Whether in fact Justice Kavanaugh would support such a reconsideration is an open question. See discussion supra note 9.

[82] See Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting) (“Nor would enforcing the Constitution's demands spell doom for what some call the ‘administrative state.’ The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation's course on policy questions like those implicated by SORNA.”).

[83] Id.

[84] Id. at 2136.

[85] See supra note 82.

[86] See United States v. Nichols, 784 F.3d 666, 668–669 (10th Cir. 2015) (en banc) (Gorsuch, J., dissenting from denial of rehearing en banc); Gundy, 139 S. Ct. at 2132 (Gorsuch, J., dissenting).

[87] See, e.g., United States v. Guzman, 591 F.3d 83, 93 (2nd Cir. 2010) (rejecting the nondelegation argument on the ground that the authority delegated to the attorney general involved “the limited class of individuals who were convicted of covered sex offenses prior to SORNA's enactment”).

[88] See cases cited supra note 52.

[89] 42 U.S.C. § 16901.

[90] Gundy, 139 S. Ct. at 2127 (quoting Brief for the Petitioner at 46).

[91] See text accompanying supra note 41; see also Gundy, 139 S. Ct. at , 2146 (Gorsuch, J., dissenting) (arguing that SORNA’s overall purpose to establish a “comprehensive national system” requiring sex offender registration and notification remained sufficiently vague so as to not provide the requisite standard).

[92] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) (“It is true enough that the degree of agency discretion that is acceptable [for nondelegation purposes] varies according to the scope of the power congressionally conferred. While Congress need not provide any direction to the EPA regarding the manner in which it is to define ‘country elevators,’ which are to be exempt from new-stationary-source regulations governing grain elevators, it must provide substantial guidance on setting air standards that affect the entire national economy.”) (citations omitted).

[93] See id.

[94] See id.

[95] See sources cited supra note 41.

[96] Loving v. United States, 517 U.S. 748 (1996).

[97] United States v. Mazuire, 419 U.S. 544 (1975).

[98] See Loving, 517 U.S. at 772 (“Perhaps more explicit guidance [to the President] as to how to select aggravating factors [applicable to a court-martial] would be necessary if delegation were made to a newly created entity without independent authority in the area. The President's duties as Commander in Chief, however, require him to take responsible and continuing action to superintend the military, including the courts-martial. The delegated duty, then, is interlinked with duties already assigned to the President by express terms of the Constitution, and the same limitations on delegation do not apply where the entity exercising the delegated authority itself possesses independent authority over the subject matter.”) (internal quotation and citation omitted); Mazurie, 419 U.S. at 556–57 (“This Court has recognized limits on the authority of Congress to delegate its legislative power. Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.”) (citation omitted).

[99] Cf. Loving , 517 U.S. at 772 (“We think . . . that the question to be asked [in a non-delegation challenge to the President’s authority to decree aggravating factors for a military justice capital case] is not whether there was any explicit principle telling the President how to select aggravating factors, but whether any such guidance was needed, given the nature of the delegation and the officer who is to exercise the delegated authority.”) (emphasis added). See also Morrison v. Olson, 487 U.S. 654, 676 (1988) (recognizing that Congress’s power to provide for interbranch appointments may not be used in a way creating an “incongru[ity]” between the appointment power thus provided and “the functions normally performed” by the branch to which Congress gives that power).

[100] Justice Gorsuch’s dissent in Gundy adopts both sides of this analysis. Among his categories of types of delegations he considers encompassed within the intelligible principle concept are those that delegate authority to a branch that already possesses some measure of independent constitutional authority to act in that area. See Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting). By contrast, Justice Gorsuch focused much of his rhetorical fire in Gundy on the fact that SORNA’s pre-Act offender provision granted to the attorney general, the nation’s chief law enforcement officer, the power to define what conduct would be criminal. See, e.g., id. at 2148 (“[W]hile Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That ‘is delegation running riot.’”) (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 (1935) (Cardozo, J., concurring)).

[101] United States v. Robel, 389 U.S. 258, 269 (1967).

[102] United States v. Sharpnack, 355 U.S. 286, 297–98 (1958) (Douglas, J., dissenting) (“The power to make laws under which men are punished for crimes calls for as serious a deliberation as the fashioning of rules for the seizure of the industrial plants involved in the Youngstown case. Both call for the exercise of legislative judgment; and I do not see how that requirement can be satisfied by delegating the authority to the President, the Department of the Interior, or, as in this case, to the States.”); see also Nat’l Cable Television Ass’n, Inc. v. United States, 415 U.S. 352, 352–53 (1974) (Marshall, J., concurring and dissenting joined by Brennan, J.) (“The notion that the Constitution narrowly confines the power of Congress to delegate authority to administrative agencies, which was briefly in vogue in the 1930's, has been virtually abandoned by the Court for all practical purposes, at least in the absence of a delegation creating ‘the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of (constitutionally) protected freedoms.’”) (quoting Robel, 389 U.S. at 272 (Brennan, J., concurring)) (footnote omitted).

[103] Touby v. United States, 500 U.S. 160, 165–66 (1991) (“Petitioners suggest . . . that something more than an ‘intelligible principle’ is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether more specific guidance is in fact required. We need not resolve the issue today.”) (citations omitted).

[104] Cf. Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (holding that it violated due process when a judge did not recuse himself when he “earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case”).

[105] See case cited, supra note 98; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (recognizing areas where Congress and the president “may have concurrent authority”).

[106] The lack of such freestanding constitutional authority referenced here relates not to the rulemaking function per se, but rather the rulemaking function as applied to a rule declaring the substance of the criminal law, promulgated by the nation’s chief criminal law prosecutor. So understood, in a case such as Gundy the lack of such authority would flow from the inherent incompatibility between declaring the substance of the criminal law and prosecuting violations of such law. By contrast, an agency’s power to engage in more generic rulemaking rests, of course, in part on a statutory delegation but also on the agency’s inherent power, as an Article II institution, to implement the law.

[107] Hamdi v. Rumsfeld, 542 U.S. 507, 539 (2003) (Souter, J., concurring in part, dissenting in part, and concurring in the judgment).

[108] See 18 U.S.C. § 4001(1) (“No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”).

[109] Hamdi, 542 U.S. at 545 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment) (quoting The Federalist No. 51, at 349 (James Madison) (J. Cooke ed. 1961)). To be sure, Justice Souter was discussing an issue of national security (the extent to which the post-9/11 AUMF authorized detention of American citizens accused of being enemy combatants). Nevertheless, he explicitly included peace- and war-time within his observations. See id.

[110] Id.

[111] See Touby v. United States, 500 U.S. 160, 167–68 (1991).

[112] See supra note 103.

[113] See Gundy v. United States, 139 S. Ct. 21162131 (2019) (Gorsuch, J., dissenting) (“The Constitution promises that only the people's elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation's chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.”).

[114] See id. at 2137 (“While the Constitution vests all federal legislative power in Congress alone, Congress's legislative authority sometimes overlaps with authority the Constitution separately vests in another branch. So, for example, when a congressional statute confers wide discretion to the executive, no separation-of-powers problem may arise if ‘the discretion is to be exercised over matters already within the scope of executive power.’”) (footnotes omitted); see also David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?, 83 Mich. L. Rev. 1223, 1260 (1985) (“Legislation that leaves the Executive Branch with discretion does not delegate legislative power where the discretion is to be exercised over matters already within the scope of executive power.”).

[115] INS v. Chadha, 462 U.S. 919 (1983).

[116] See Richard Pildes, The Supreme Court’s Contribution to the Confrontation Over Emergency Powers, Lawfare (Feb. 19, 2019) (Chadha “decimated the policy scheme Congress had created for overseeing the president’s declaration of emergency powers”).

[117] For example, in 2019, the Court of International Trade rejected a non-delegation challenge to the president’s decision to impose steel tariffs pursuant to his authority under Section 232 of the Trade Expansion Act of 1962, 19 U.S.C. § 1862. Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019). Section 232 authorizes the president to impose trade restrictions for national security reasons. While the Court of International Trade, relying on Supreme Court precedent, unanimously rejected the nondelegation argument, one judge concurred “dubitante,” expressing serious concern on the nondelegation issue. See id. at 1345 (Katzmann, J., dubitante).

[118] See Geoffrey Manne & Seth Weinberger, Time to Rehabilitate the Legislative Veto: How Congress Should Rein in Presidents’ ‘National Emergency’ Powers, Just Security (Mar. 13, 2019) (calling for Congress to amend the NEA to reinsert the legislative veto that was removed after Chadha, and to test that enactment in court).

[119] See Gundy, 139 S. Ct. at 2131 (Gorsuch, J., dissenting) (“The Constitution promises that only the people's elected representatives may adopt new federal laws restricting liberty. . . . But if a single executive branch official can write laws restricting the liberty of [a half-million pre-Act offenders], what does that mean for the next?”).

[120] See United States v. Nichols, 784 F.3d 666, 671 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc) (“At stake [in the nondelegation doctrine] is the principle that the scope of individual liberty may be reduced only according to the deliberately difficult processes prescribed by the Constitution . . . .”).

[121] To be sure, this analysis uses Justice Gorsuch’s Gundy opinion as the position of the Court’s conservative wing. It may be that Justice Thomas would advocate for an even more radical revision of the non-delegation principle. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 486 (2001) (Thomas, J., concurring) (expressing doubt about the intelligible principle standard itself). Nevertheless, a search for a consensus on a given issue amounts to a search for middle ground, which in this case would mean common ground between justices who have not expressed more extreme views.

[122] See Gundy, 139 S. Ct. at, 2135 (Gorsuch, J., dissenting) (quoting Federalist 37 for the proposition that “no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary”).

[123] Cf. Nat’l Cable Ass’n, Inc. v. United States, 415 U.S. 336, 340 (1974) (identifying the taxing power, which appears in the same clause of Article I as the spending power, as one that must be exercised by Congress).

[124] Stern v. Marshall, 564 U.S. 462 (2011).

[125] Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).

[126] See Stern, 564 U.S. at 494 (“This is not a situation in which Congress devised an expert and inexpensive method for dealing with a class of questions of fact which are particularly suited to examination and determination by an administrative agency specially assigned to that task.”) (citing Schor) (internal quotation omitted).

[127] Gundy, 139 S. Ct. at 2143 (Gorsuch, J., dissenting).

[128] Cf. Thomas Merrill, Capture Theory and the Courts: 1967–1983, 72 Chi.-Kent L. Rev. 1039, 1104 (1997) (“James Landis, in his paean to government by agency experts, characterized separation of powers doctrine as an anachronism; in an era that largely concurred in this assessment, one would not expect to see robust enforcement of a principle that might inhibit the granting of broad discretionary powers to agencies.”) (footnote omitted).