Gundy and the Future of Delegation

Will the courts ever be willing to curb excessive delegation? If not, could Congress learn to constrain itself?

For decades, critics of the administrative state have called upon the Supreme Court to enforce limits on Congress's ability to delegate authority to administrative agencies – and there is little to show for it. For decades, the Court has turned away these arguments, at times suggesting that there is no judicially administrable standard for determining when a delegation of authority goes too far. Some thought Gundy v. United States would be different. Alas it was not.

While four justices in  expressed a willingness to consider judicially enforceable limits on the delegation of power to the executive branch, five justices (those in the plurality and Justice Alito who concurred in the judgment) were unwilling to prevent Congress from  (in the words of Justice Gorsuch's dissent) "hand[ing] off to the nation's chief prosecutor the power to write his own criminal code."

One reason some thought Gundy was a particularly strong candidate for the nondelegation doctrine's revival was because it did not involve a popular regulatory program or threaten settled expectations about the distribution of authority to any particular administrative agencies. At issue instead was whether Congress could delegate authority to determine whether the requirements of the Sex Offender Registration and Notification Act (SORNA) apply to those whose offenses predated the act. In this particular case, because the Attorney General decided to apply SORNA's requirements retroactively to those who had committed prior offenses, Herman Gundy faced a ten-year prison term for failing to register under SORNA. By comparison, Gundy spent only five years in jail for his underlying offense, which, again, he committed prior to SORNA's enactment.

SORNA's delegation was upheld only because Justice Alito opted to concur in the judgment. Thus there may still be a nascent majority to revive limits on Congress's ability to delegate broad authority to executive branch officials – the three dissenters, Justice Alito, and Justice Kavanaugh, who did not participate – but any such assumption may be premature.

Although he joined Justice Gorsuch's dissent, there are reasons to suspect the Chief Justice might not be willing to be the fifth vote to dramatically change administrative law as we know it. The Chief has written his own "anti-administrativist" dissents, as in City of Arlington v. FCC, but when he's had the opportunity to cast the fifth vote to alter administrative law doctrine in a significant way (as in Kisor v. Wilkie), he's trimmed his sails.

The Chief Justice may be particularly reluctant to upset the settled understanding of Congress's authority to delegate broad power to administrative agencies, particularly insofar as this would require courts to reconsider the constitutionality of long-established programs. He's likely to be more comfortable with a decision that tells Congress "this far, but no farther," than with a decision that directly challenges the last half-century of legislative delegations. As Rick Hills suggested at Prawfsblawg, any nondelegation revival may be limited to preventing future excesses at the margin.

All this may mean that hopes for a robust revival of the nondelegation doctrine are misplaced. After all, as Rick notes, the proper boundary between a permissible and impermissible delegation is anything but clear. It's far easier to declare the principle that Congress cannot delegate legislative power to administrative agencies than it is to demarcate the boundary such a principle should produce.

If delegation is a problem, is there an alternative to waiting for the Court to come around? Perhaps those concerned about delegation focus too much on the courts, and too little on delegation's source: Congress.

As I noted in a prior post, Chris Walker and I argue in a new paper, "Delegation and Time,"  that it is time to reconsider institutional mechanisms that could encourage Congress to more carefully delineate the scope of legislative delegations. In effect, we argue that Congress may be in a better position to address many delegation concerns than courts have been to date, particularly insofar as one is concerned about broad delegations contained in older, potentially obsolescent, legislation.

While it may be hard for Congress to take the initiative to revisit and revise legislation as a general matter – and the enactment of broad REINS Act-type reforms may be unlikely -- it may be possible for Congress to alter the incentives against more regular legislative action through the use of temporary legislation. Congress may not like to legislate, but when given sufficient inducement to act, even recent Congresses have shown themselves capable of acting - and a Congress that acts legislatively on a more frequent basis is a Congress that is likely to be exercising greater oversight and control of how delegated power is being used -- or so we argue.

I'll have more to say on how sunsets and mandatory reauthorizations might induce more responsible legislative action in a follow-up post. In the mean time, if you want more now, check out the paper.