Supreme Court

Kavanaugh Joins Gorsuch in Fight To Revive Nondelegation Doctrine

An important development in the legal wrangling over the separation of powers.


The U.S. Supreme Court narrowly upheld a law in June that, in the dissenting words of Justice Neil Gorsuch, "hand[ed] off to the nation's chief prosecutor the power to write his own criminal code." Today, Justice Brett Kavanaugh spoke up in support of Gorsuch.

The June ruling came in Gundy v. United States, a case that centered on a 2006 federal law known as the Sex Offender Registration and Notification Act (SORNA). Among other things, SORNA required convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

The law also contained this provision: "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." Translation: Congress gave the attorney general a blank check when it came to dealing with the estimated 500,000 individuals whose convictions predate SORNA's passage.

It was that delegation of legislative authority to the executive that sparked Gorsuch's ire. "The rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else," the justice wrote in dissent. According to Gorsuch, SORNA combined the lawmaking powers of Congress with the law enforcement powers of the executive, and then gave those combined powers to a single federal official. For the Supreme Court to let that outcome stand, Gorsuch argued, marks "the end of any meaningful enforcement of our separation of powers."

Justice Brett Kavanaugh took no part in Gundy, leaving some court watchers to wonder about how he might have ruled. The Court's newest justice answered that question today. In a statement respecting the denial of certiorari in Paul v. United States—another separation of powers case, which the Court turned down this morning—Kavanaugh wrote in praise of "Justice Gorsuch's scholarly analysis of the Constitution's nondelegation doctrine" in Gundy, noting that this "thoughtful" dissent "raised important points that may warrant further consideration in future cases."

In other words, Kavanaugh seems to have joined Gorsuch's campaign to put some judicial teeth into the nondelegation doctrine. That's welcome news for those who think that the Constitution meant what it said when it placed federal lawmaking power in the hands of Congress, not in the hands of the executive branch.

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  1. Thank you President Trump.

    1. This #LibertarianMoment brought to you by Orange Man and the Deplorables who supported him, over the hysterical pants shitting opposition of @Reason.

      You’re welcome.

  2. TRUMP!

    Best President in over 80 years.

    1. Low praise.

      Like best child molester.

  3. the Constitution’s nondelegation doctrine

    Where is this? Don’t get me wrong, I wish it were in there, but it’s not in there explicitly. “All legislative power” reads to me to include the power to legislate the delegation of legislative power.

    1. Enumerated powers means these are the only powers congress has. If the framers wanted the Congress to have the power to delegate then they would have granted Congress the power to delegate. They have no authority to alter the constitution except by amendment requiring 2/3 vote so they can’t legislate away the constitutional authority and protections bestowed upon them by the people.

      That’s my opinion on the matter anyway.

      1. I guess that’s a good way to look at it. Delegation of legislative power is not an enumerated power, so it’s not allowed. Ok, I can go with that.

        1. And when a genie gives you 3 wishes, one can’t be for more wishes to be granted.

        2. Reason has written articles over the years about how delegation to the executive branch increases government power, because first we don’t know what the law will be until after it’s passed and the rules are later written. Second, because it allows Congress to pass what would be very unfavorable laws (no – you can’t really keep your plan) and pass the blame to the bureaucracy.

          In today’s environment with the political establishment losing the presidency, you don’t see them passing any more laws that Trump’s bureaucrats can write. I think they’re very upset that Trump is having his bureaucrats re-write the laws per the delegation Congress gave in the past, because it’s removing their ability to pick winners and losers in commerce. DC’s problem with Trump is of their own creation, and like all their attacks on Trump, they’re blowing back, because it shows in the economy and points the economic doldrums blame at their feet.

      2. That is correct. The presumption is that each branch has only those powers expressly granted to it, and no more.

    2. How can Congress have “all legislative power” at the same time that it delegates part of that legislative power away? Not logically possible.

      (Though Congress doesn’t usually hesitate to go against the Constitution, as when it delegated some of its powers under the Commerce Clause to the President.)

  4. ““All legislative power” reads to me to include the power to legislate the delegation of legislative power.”

    Section 1
    All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

    The power to delegate is not in there explicitly, either.

    1. Hit submit too soon…

      Section 1
      All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

      All legislative powers are vested in Congress and Congress = Senate and House of Representatives. The Constitution offers no other options.

    2. Or, to take a more expansive view. They can delegate authority, but that delegation would not extend beyond the term of that Congress.
      Because no prior Congress can bind a future Congress.

      1. I like that reasoning. Only wish we can apply it to all of congress.

      2. so if i understand anytime Congress delegates rule making to some buracracy like the EPA then every next congress would have to re-approve those rules or they would all sunset with the previous congress. I’d be fine with that

        1. Yuppers, that’s the MOST generous interpration of the delegation of legislative powers I’ve seen that remains accurate.
          But we ALL know the EPA would never allow their pens to be taken away. They LOKE IT when they can declare a furrow in a farmer’s field in the middle of summer a “navigable waterway” and thus can control it.

  5. That’s welcome news for those who think that the Constitution meant what it said when it placed federal lawmaking power in the hands of Congress, not in the hands of the executive branch.

    Is this not the same magazine that shilled for Obama’s executive DACA?

      1. The sad part about that comment is, not that it’s accurate (it is) but that the authors/editors here do not see the problem.

    1. If I recall, they shilled for the legislation, not the EO.

    2. You’re not allowed to criticize Welch and Gillespie’s personal godhead and the usherer in of “Our Libertarian Moment”.

  6. Here’s hoping the RBG bot has a total system shutdown in the near future and we can get yet another freedom/loving jurist who actually believes in liberty and the constitution.

    1. Though I agree with you in theory, we need all the freedom-loving justices we can get, I can’t think of a single action that would drive the left to widespread violence more completely than Trump replacing RGB.

      I don’t really want to see our country devolve in to an even deeper depth of madness.

      That said, whether it be Trump or some other who is expressly not Team Blue, she needs to be replaced.

      1. “I can’t think of a single action that would drive the left to widespread violence”

        Seems like an excellent excuse to end a few of them. You can never get rid of too many leftists.

      2. As for replacing Ginsberg [who is on a death watch by all sides here] with a sound jurist, the possibility [or likelihood] of all hell breaking loose should not prevent Trump from doing the right thing. I agree and would not be surprised if some factions resort to actual violence in response, but there are ways of dealing with that in the course to supporting nothing less that the US Constitution; and in my view would be well worth the cost.

        We are divided, it seems, largely along the lines of “more government take care of me” and those of us who want to live in a Constitutional Republic with minimal government interference in our pursuit of life, liberty, and the pursuit of happiness.
        Replacing Ginsberg with someone like Willett will be nothing less than a game changer, and the separate branches of government being held to their intended purposes. It will also mean the death of many progressive dreams, and if it comes to that, then so be it.

      3. I wish the good justice no ill, but do hope for the sake of my country that she decided to step down during President Trump’s first term and not hold on through as much of the second as she possibly can.

        1. She needs to be removed from the bench for bias, sleeping thru hearings, blathering about Trump…

          1. Bias. You have nerve. What the HELL Do you think the right winged Justices are.

    2. I’d rather he get to replace Roberts with an originalist.

      *Not hoping for anyone to die. Retirement would be fine.

      1. or at least someone who does not have a damning sword dangling above his pate……

      2. Maybe Roberts will be impeached for the FISA court criminality.

        He’s the head of the FISA court.


      3. Since she’s not going to retire, I hope she dies as soon as possible.

        She publicly admitted in a foreign country that she doesn’t truly believe in the U.S. Constitution. That means that every day she serves in this job she’s violating the sworn oath that she took.

        1. I really don’t care how many progressives need to be destroyed or die to protect our constitutional republic. They’re all traitors anyway.

          If a million of them dropped dead in the spot, but it meant we kept our individual freedom, then so be it.

          Individual freedom > collective lives of all progtards

      4. The Constitution was meant to flow with the times. There is no way you can apply original meaning. It’s just code word to undo a lot of case law that you or others don’t like. Roe v Wade (1973), Obergefell v Hodges (2015), Engle v. Vitale (1962), Lawrence v. Texas (2003). I do appreciate and understand that you interpret the how it should be read in terms of constitutional life. This is the Twenty-First Century (2000’s) NOT the Eighteenth Century (1700’s)

    3. The liberty… of factories to pollute our air and waters with no repercussions.

      That’s all the liberty these people care about. Not yours. You can rot in prison for smoking a joint for all they care.

      1. It’s rich to here you talk like that, when you want nothing more than to sell this country out to a bunch of commies that are a millions times worse that want to remove all individual freedom, except to murder infants and glorify inveterate sodomites such as yourself.

        I don’t even get why you come here. I would have figured that you would spend your time in a big circle jerk with all the other Marxian traitors over at Vox, HuffPo, Slate, NYP, etc..

        1. I like it rough daddy.

          1. Predator Vs Alien!

        2. What a fucking douchebag you are. It’s none of your business whether someone is Gay or not. It doesn’t harm you.

  7. ‘”In other words, Kavanaugh seems to have joined Gorsuch’s campaign to put some judicial teeth into the nondelegation doctrine. That’s welcome news for those who think that the Constitution meant what it said when it placed federal lawmaking power in the hands of Congress, not in the hands of the executive branch.’
    ‘”Kavanaugh and his fellow “unitarians” believe the Constitution vests the president with direct and unbridled control over every single instrument of executive power — including the Justice Department and law enforcement. Unlike the justice he would replace, Anthony Kennedy, Kavanaugh would be the fifth solid vote providing Trump with the legal justification to exercise the monarch-like authority that his tweets so clearly show that he craves. Kavanaugh made five suggestions in his 2008 article. The first one has already been widely discussed: “Provide sitting presidents with a temporary deferral of civil suits and of criminal prosecutions and investigations.”‘
    It seems to me that these 2 positions posited by Kavanaugh are in conflict. I would argue that by giving the executive branch the unbridled authority Trump clearly wants & Kavanaugh endorses U R effectively stifling the concept of equal branches of the government as well as the “lawmaking power” of Congress if an unrestrained CEO chooses to ignore the intent and will of Congress.

  8. Wasn’t the nondelegation doctrine used to overturn the Line Item Veto when Clinton was President? Without consistency, you don’t have “Rule of Law”. Establishing this in precedence would be a great accomplishment freeing citizens from tyranny of the bureaucracy and forcing congress to actually think before passing legislation. Perhaps they would even read it before voting on it.

  9. Happy about Kavanaugh’s support for non-delegation doctrine, but don’t understand his reasoning for declining certiorari.

    “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)”

    How is this different than using Janus case to overrule the previous term’s Friedrichs case ?

  10. Forget delegation of powers, this is clearly an ex post facto law. How does anyone else not see that?

  11. The Exec has the power of temporary directive and mandate which can end with the coming of a new administration..the Congress has the ability to make law and regulate and it is up to the SCOTUS to judge the constitutionality of all challenged law…..checks and balance among the 3 branches and it still works…

  12. You have to work and use the computer and internet, and if you can do that and dedicate some time each day then you can do this with no problem.
    I have been working with this for a month and have made over $2,000 already. let me know if you need more help.

    ………….ReaD MorE

  13. We will see in the DACA case if there is bite proceeding the bark from Kavanaugh and company.

  14. You people don’t even know why you like the nondelegation doctrine. More horsepucky navel-gazing by conservatives who think they know everything there is to know already, which will have the practical effect of undermining the way modern civilization works.

    1. Nothing goes over your head!

    2. Folks, here is a professional level ad hominem attack. Tony’s a pro! It doesn’t get much better than this.

      1. Apparently Tony’ too thick-headed to understand the concept of separation of powers. I mean, it’s only one strut of the three-pillared structure of American liberty, so I guess it doesn’t matter much, right?

        Woodrow Wilson luvs ya, Tony…..

        1. I understand that it also entails the judiciary being separate from the legislature to some fuzzy degree. Almost as fuzzy as the distinction between legitimate and unconstitutional delegation. Should Congress scrub its own toilets too? What about supreme court justices?

          1. You’re a drooling idiot. Just sit back, let your boyfriend fuck your asshole, and shut up.

            You have nothing insightful to add to any discussion.

            1. Literally your only political opinion is that Trump is the best leader the world has ever seen.

              1. It’s a testament to your tiny ,title stunted mind that this is your takeaway from my comments. I don’t consider politicians to be my idols like you do. They’re all like milking cows. The milk I’m looking for is the kind of limited balanced government per the constitution.

                If I can’t get any of that milk out of a particular politician’s tit, they have no value to me. Trump is no different. He is producing enough for me to support him. He is also a better choice than anyone else currently available. He is also not a complete fucking disaster like the Democrat clown car that want to steal all my shit and give it to illegals.

                1. You’re a goddamn fucking moron is what you are.

                  1. Tony, compare to me, you barely have a functioning brain. So I wouldn’t go that direction if I were you.

                    Just accept what an idiotic piece of shit you are, and be grateful that people like me are generous and continue to tolerate your existence.

    3. You people don’t even know why you like the nondelegation doctrine.

      Hold on a second, Tony. I know precisely why I like non-delegation. Frankly, the Congress is the body closest to the people. They are the body I want deciding social and policy questions. The Executive should be filling in minor implementation details, and not more than that. If you want a constrained Executive, and I do, then the Congress needs to do far less (less laws passed), but do it much better (answer all the policy & social questions attendant with legislation).

      1. I like checks and balances so as to mitigate abuses of power, but as for constraints for their own sake, we do have a planet to manage. We’ve tried sitting around with our thumbs up our asses, and amazingly it hasn’t made things better.

        1. ‘A planet to manage’

          Goddamn you’re a total idiot. It’s very unfortunate that you are not receiving regular, much needed beatings to correct your idiocy.

  15. Now I wish they’d rein in Title IX..

  16. I find it odd that unmentioned is the constitutional prohibition of ex post facto laws, which retroactively reach back to offenses that predate the law’s passage.

    They are unconstitutional, BLACK LETTER.

    I realize that non-delegation is a pressing issue, but blatant disregard of a literal constitutional limitation (not mere doctrine) would seem more egregious.

  17. Is it just me or are Thomas and Alito mansplainin’ there?

    Perhaps it is merely a case as the great Roman lawyer and orator Gluteus Maximus often said of “ Estne volumen in toga, an solum tibi libet me videre?”

  18. Although Reason editors do not read comments, it is evident from the comments here that if Reason were not so easy with it’s Trump hate, more people might be ready to accept it is reasonable in separate articles.

    But, please, continue your unending venom. I’m sure it is a good way of spreading the libertarian message.

  19. This is by far the best thing to come from Kavanaugh so far. Good job.

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