Yesterday a fragmented Supreme Court announced its judgment in Gundy v. United States, which upheld a provision of the Sex Offender Registration and Notification Act (SORNA) that allows the attorney general to decide whether and how sex offenders convicted prior to passage of the Act need to register under the comprehensive national system of registration established by the statute. That delegation of authority to the attorney general was challenged under the nondelegation doctrine, under which Congress, the branch vested by the Constitution with legislative power under the Constitution, may not transfer such power to another branch.
The Court added a gloss to this doctrine in 1928, when it stated that Congress may delegate authority provided that the statute lays down an “intelligible principle” to which the body exercising such authority is required to conform. That remains the law to this day, but since the New Deal, when it struck down delegations in two cases decided in 1935, the Court has upheld every other delegation it has faced. That has contributed to the unprecedented proliferation of a vast administrative state over the last eight and a half decades, prompting many observers to wonder whether the nondelegation doctrine is a virtual dead letter.
Gundy did not yield an opinion by a majority of the Court, but a plurality opinion written by Justice Kagan and joined by Justices Ginsburg, Breyer, and Sotomayor. That opinion did not take issue with precedent or the nondelegation doctrine, but tried to argue around it by putting an interpretive gloss on the statute: SORNA, Kagan maintained, requires the attorney general to register pre-Act offenders as soon as feasible, and the only discretion granted to the attorney general is to address feasibility issues based on technical challenges presented by the prior patchwork of sex offender registration systems.
Justice Gorsuch’s dissent, on the other hand, noted the statutory text, which mentions nothing about feasibility and expressly gives the attorney general “the authority to specify the applicability” of the statute to pre-Act offenders. This amounts to “vast” discretion for a category that consists of more than 500,000 people, and a succession of attorneys general exercised their discretion in a variety of different directions.
The dissent continued with a discussion of the pedigree of the nondelegation doctrine going back to James Madison and John Marshall and why it is necessary to take the separation of powers seriously. Proceeding into the twentieth century, Gorsuch also explained how the Court’s “‘intelligible principle’ remark eventually began to take on a life of its own,” one with “no basis in the original meaning of the Constitution,” which brought us to where we are today. Instead, a correctly rooted “intelligible principle” test must ask:
Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments?
Gorsuch’s dissent was joined by Chief Justice Roberts and Justice Thomas. Justice Kavanaugh did not participate in the case, which was argued before his confirmation.
The fifth vote for the Court’s judgment came from Justice Alito, but he wrote his own separate concurrence without joining the plurality opinion. Sounding more like the dissenters, he criticized the Court’s blanket rejection of nondelegation challenges since 1935, which meant it “upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Alito expressed his “willing[ness] to reconsider the approach we have taken for the past 84 years” if a majority of justices were willing to do so, but absent that majority, he found the statute to be in line with precedent.
That leaves four justices on record as willing to breathe new life into the nondelegation doctrine, with the possible fifth vote in Justice Kavanaugh when the issue comes before him.