In Gundy v. United States, the Supreme Court of the United States was split 4 - 4 on the question of nondelegation. With a vacancy on the Bench, half of the Court took no issue with Congress delegating nearly unlimited discretion to the United States Attorney General over the enforcement and applicability of the Sex Offender Registration and Notification Act to offenders whose crimes preceded the Act’s enactment. The other half of the Court saw this grant of vast power as a violation of the nondelegation doctrine; the idea that Congress may not delegate its Article I lawmaking powers to any other branch of government. The Court has not struck down a law on nondelegation grounds since before the New Deal Era. This could soon change with the new majority on the Court. By adopting a novel balancing test, known as the major rules doctrine, this new Court could resurrect the spirit of the nondelegation doctrine and begin to return federal administrative law to a more interstitial role under a more traditional understanding of separation of powers. By flipping the analysis from first considering the power delegating statute to now beginning with the promulgated administrative rule, the Court will be able to rein in actions taken by executive agencies which have far-reaching economic, political, or otherwise contentious effects. The implications of this reversal of nearly a century’s worth of judicial deference to Congress and the various administrative agencies include (1) more deliberate law-making by Congress, (2) asymmetric effects across administrative agencies, and (3) increased accountability for regulation at the federal level.
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Jarrod A. Greth,
The Future of Nondelegation: Resurrecting the Doctrine Though a Novel Balancing Test,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol50/iss3/9