Justice Kavanaugh on Delegation and Major Questions (Updated)

The Supreme Court will not rehear Gundy v. United States, but Justice Kavanaugh seems ready to revisit the doctrine.

This morning the Supreme Court denied rehearing in Gundy v. United States, a failed non-delegation challenge to portions of the Sex Offender Registration and Notification Act (SORNA).

Unsurprisingly, the Court also denied certiorari in a parallel non-delegation case, Paul v. United States, but Justice Brett Kavanaugh wrote separately suggesting he is ready to reconsider the Court's nondelegation precedents, particularly in the context of "major questions." Among other things, this suggests the Court may be more willing to revisit nondelegation in the context of a major regulatory initiative than in the context of a focused criminal statute--think net neutrality or greenhouse gas regulation as opposed to sex offender registration.

Justice Kavanaugh's opinion respecting the denial of certiorari reads as follows:

I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that the Court resolved last Term in Gundy v. United States, 588 U. S. ___ (2019). I write separately because Justice Gorsuch's scholarly analysis of the Constitution's nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases. Justice Gorsuch's opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 685–686 (1980) (Rehnquist, J., concurring in judgment). In that case, Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.

In the wake of Justice Rehnquist's opinion, the Court has not adopted a nondelegation principle for major questions. But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce. See, e.g., Utility Air Regulatory Group v. EPA, 573 U. S. 302 (2014); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 (1994); Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).

The opinions of Justice Rehnquist and Justice Gorsuch would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions.

Like Justice Rehnquist's opinion 40 years ago, Justice Gorsuch's thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.

If that's not an invitation for litigants to bring additional non-delegation challenges, I do not know what is.

One final note. This opinion should not be particularly surprising, especially the focus on the "major questions" doctrine. As a lower court judge, Kavanaugh expressed concerns about deferring to agencies in the context of broad delegations concerning major questions. In USTA v. FCC, for example, he wrote:

If an agency wants to exercise expansive regulatory authority over some major social or economic activity – regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for example – an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.

While this issue typically comes up in the context of Chevron deference claims, it is clearly connected to broader nondelegation concerns, so it's no surprise that the particular problem posed by major questions is the focus of Justice Kavanaugh's separate opinion this morning.