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Justice Kavanaugh Provides Another Sign the Nondelegation Doctrine May be Revived
Mike Rappaport

Last term, the Supreme Court decided Gundy v. United States, which reviewed a large and largely standardless delegation of power to the Attorney General.  The Court approved of the delegation in a 5 to 3 vote, with a strong dissent by Justice Gorsuch arguing on originalist grounds in favor of the revival of a more limiting nondelegation doctrine. 

The significant fact about the case was that Justice Kavanaugh did not participate because he was not confirmed at the time of the oral argument.  As a result, Justice Alito announced that he would vote in favor of the delegation in the case.  But Alito said he would seriously consider the issue of reinvigorating the nondelegation doctrine if Justice Kavanaugh were to participate in the future and there were potentially five votes in favor of strengthening the doctrine.  But until then, he would vote in favor of the delegation.

Put aside the curiousness of Justice Alito’s position.  And put aside the puzzling fact that the Court did not order a reargument to allow Kavanaugh’s participation, even though it did so in another important case (the Knick Takings Case).  Still, this signaled that four or five members of the Court might be ready to reinvigorate the nondelegation doctrine.

Now, there is more evidence that the doctrine might be resurrected.  Justice Kavanaugh, in a statement respecting the denial of certiorari, seemed to indicate that he was open to reviving the nondelegation doctrine.  Kavanaugh wrote:

In the wake of Justice Rehnquist’s opinion, the Court has not adopted a nondelegation principle for major questions.  But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce.

The opinions of Justice Rehnquist and JUSTICE GORSUCH would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions. 

Like Justice Rehnquist’s opinion 40 years ago, JUSTICE GORSUCH’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.

Another thing that Kavanaugh’s statement makes clear is that he would prefer the nondelegation doctrine to be framed in terms of the major questions doctrine.  When he discusses the revival of the nondelegation doctrine, he frames it in terms of “major policy questions of great economic and political importance.” 

This last point is important.  One significant advantage of employing the major questions standard to the nondelegation doctrine is that one can argue that it is an existing standard.  If the Court currently employs the major questions doctrine to determine whether Chevron deference should be given to an agency, then it is harder to argue that the same standard is too unclear to apply to questions of whether delegations are constitutional.  

Stay tuned.