Administrative Law

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.

NEXT: Auer Deference Post-Kisor

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  1. What is the preferred solution to vague laws? If executive branch agencies don’t get to impose their interpretation, I presume courts shouldn’t get to do so either?

    If neither the executive branch nor the judiciary gets to define the application of such a law, it would fall to Congress. Should Congress establish an ‘ask us what we meant’ office to clear up vagueness? And if so, does the current Congress get to interpret legislation passed years earlier, or does the Congress that passed the law maintain a presence in order to answer such questions?

    Or should such vague laws be deemed ‘passed, but not-in-effect’ if the wording of the law is not crystal clear… a law is only good if there’s no vagueness present?

    1. such laws should be deemed void.

      1. Of course that just moves things back a notch.

        Someone still has to decide if they are clear or not.

        1. That’s exactly what the courts are for.

    2. I’ve always wondered about the idea of some kind of certified question procedure for courts to ask legislatures what they meant by certain language. Federal courts already certify similar questions to state supreme courts. You run into the problem of a later (and possibly opposite party) legislature completely changing the interpretation of a law passed by a previous legislature, but they can already do that anyway and it certainly seems better than allowing courts to change meanings of laws.

  2. In theory, delegation shouldn’t have even been an issue here, because the ex post facto clause should have utterly precluded this. Delegation was only relevant because the Court has already mostly gutted that clause.

  3. This whole problem could be solved by the simple expedient of having Congress pass a routine quarterly bill ratifying all proposed regulations published in the federal register in the previous quarter, and requiring this ratification step before regulations become effective. This simple routine procedure would solve the entire problem. Congress could of course amend the law to put certain proposed regulations on a slow track for further inquiry, but that would simply be the democratic process at work. There could be exceptions for emergency situations, and the procedure might only be appropriate for regulations applying to the public. But this entire issue could be addressed by a simple routine procedure, without unduly burdening Congress.

    1. Maybe, but Congress would surely want to be selective about which regulations to approve, which to block, and which to put on the slow track.

      It doesn’t strike me that it would be an easy routine procedure

      1. Congress would surely want to be selective about which regulations to approve, which to block, and which to put on the slow track.

        So…it will force Congress to do its job?

        1. Seems to me, that no matter what congress does, some (if not many) regulations are apt to be challenged alleging (probably correctly) a “genuine ambiguity.” Whether the courts agree presents still another question.

        2. Yes.

          My point was just that this would not be the “simple routine procedure” that ReaderY thinks it would.

          1. So you think that Congress wouldn’t agree to all of the regulations being promulgated, and think that’s a bad thing?

            If you really do think that rule by the elite is best, just say so rather than arguing around the edges. Then we’d all understand your argument much better.

            “I want the law made by unelected Judges who get to write the law, interpret their own laws, and pass sentence on people who violate those laws” does have efficiency going for it, but it’s not a form of democracy or republicanism.

      2. I’ve long advocated for such a procedure by congress. I’m not sure if reviewing the previous quarter’s regs is the way to go or some other system – I suggested every cabinet dept gets has it’s regs reviewed once every 2 years and anything congress doesn’t like gets tossed out. Anyway, we should be living under rules (we call them laws) that are democratically passed.

  4. While it may be hard for Congress to take the initiative to revisit and revise legislation as a general matter

    This is a feature, not a bug.

    Congress wants to be able to enact a law and not have that law subject to review or being overturned by a subsequent Congress. That’s why *Massachusetts v. EPA* had to come down the way it did: institutional elements in the EPA did not want Congress to revisit the enabling legislation, nor did the outside firms want to surrender any of the power gains they had made using the EPA statute.

  5. Justice Roberts is the key here, and the key to Justice Roberts is that he, unlike the other Republican votes, had a significant and lucrative private practice tending to the actual material interests of his paymasters, who weren’t interested in ideological crusades against the administrative state, but paid big bucks to lawyers, like Roberts, who could help them navigate it and curb its excesses. He knew what they wanted then, and he knows what they want now.

    1. From Justice Kagan’s opinion “question of Auer deference may only arise if the regulation at issue is truly ambiguous” . . . what “truly” actually means will keep many law firms busy for many years to come.

      You may be right about Roberts, but Kagan owns it.

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