This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Andrea Belanger
The Supreme Court is close to reviving the nondelegation doctrine—a step that would render most of the federal government unconstitutional. The nondelegation doctrine embodies the principle that the Constitution vests all legislative power in Congress, and that Congress cannot hand that power off to some other authority. For decades, the Court has used the “intelligible principle test”—which provides that a delegation is constitutional so long as Congress sets forth a guiding principle to govern the delegee’s exercise of authority—to uphold various delegations. However, a 2019 case indicates that a departure from this jurisprudence may be imminent.
In Gundy v. United States, a divided Court upheld a congressional delegation to the Attorney General to implement a sex offender registry law. The 4–1–3 decision in Gundy reflects two competing views—one fighting to preserve delegation and a vibrant administrative state, and the other arguing for a strengthened nondelegation doctrine that recognizes the separation of powers issues inherent in Congress’s divestment of legislative powers.
In his dissent, Justice Neil Gorsuch suggested replacing the intelligible principle test with one that would allow Congress to delegate authority to agencies only to “fill up the details” or make minor alterations. This test would require Congress to lay out the rules for delegees to abide by in substantial detail. Although Justice Gorsuch dissented in Gundy, the dynamic of the Court at the time of the decision indicates that his opinion could soon replace the current precedent avoiding enforcement of the nondelegation doctrine.
Justice Samuel Alito, breaking from his conservative voting record, cast the deciding vote for the plurality. Although Justice Alito voted to uphold the delegation, he wrote in his concurrence, “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” His striking declaration signals that a change in the Court’s nondelegation doctrine jurisprudence is fast-approaching.
Notably, Justice Brett Kavanaugh took no part in the consideration or decision of the case. However, his voting record regarding separation of powers issues during his tenure on the D.C. Circuit suggests he would join the Gundy dissenters in a future case. This would give Justice Alito the fifth vote he needs to upheave decades of nondelegation doctrine jurisprudence.
A strengthened nondelegation doctrine will have severe implications on the future of governance. Typical congressional delegations afford agencies broad authority to regulate in the “public interest” or set standards “requisite to protect the public health.” If adopted, Justice Gorsuch’s test would render agencies futile and give them no flexibility to adapt to changing circumstances and implement laws based on their expertise.
As members of Congress are democratically elected and politically accountable, it seems reasonable to require Congress to make all policy decisions, but Justice Gorsuch’s test would dismantle the administrative state. The degree of specificity in legislative directives that his test would necessitate would make it difficult to gain enough votes to pass laws and put the onus on Congress to make decisions in areas where it lacks the requisite expertise.
In the age of coronavirus, congressional delegation to federal agencies to make and implement public health and safety laws is vital. The pandemic has overwhelmed the country’s healthcare system and crushed the economy. Agencies need the flexibility to fill gaps left by Congress, allocate resources, and set priorities to protect public health and safety.
Agencies have scrambled to implement relief efforts and approve measures to combat the coronavirus. Congress tasked the Small Business Administration with implementing a loan forgiveness program for small businesses impacted by the pandemic. The Food and Drug Administration is responsible for expanding and authorizing testing; it recently approved a genetic test that can give results in five minutes—a critical development necessary to make testing faster and more accessible.
Recognizing the need for delegation, experts have suggested creating a Pandemic Testing Board to respond to the coronavirus. This Board would be able to rapidly produce and distribute tests and protective equipment—something our government has not accomplished on its own. Congress would need to delegate broad authority to the Board to approve tests and compel the production of supplies. Although President Trump has similar powers as the Board would, he lacks the expertise necessary to coordinate a successful pandemic response. As the President disbanded the pandemic response unit in 2018, the need for legislative delegation to expert, politically insulated entities is crucial to maintaining consistency and ensuring effective governance amid leadership changes.
The coronavirus demonstrates that Congress must continue to have the flexibility to delegate rulemaking authority so as to empower expert agencies to respond to public health crises. A revival of the nondelegation doctrine will hinder agencies’ ability to provide necessary regulatory responses to future public health emergencies. Yet it is only a matter of time before the Supreme Court is presented with a case that allows it to declare most of government unconstitutional—and upend American life as we know it.