How Justice Kavanaugh Can Make The Whole Government Unconstitutional

By Molly Williams*

Article I of the Constitution vests all legislative powers in Congress.[i] Congress cannot delegate these powers to other branches. Congress can, however, “obtai[n] the assistance” of other branches. [ii] Congress can therefore delegate to executive agencies as long as Congress provides an “intelligible principle” to guide agency discretion.[iii]This doctrine, known as the nondelegation doctrine, ensures that executive agencies are not becoming a “Junior Varsity Congress” by performing legislative functions.[iv]

Courts have only found an “intelligible principle” lacking in two instances, both in 1935.[v] Since then, extremely vague “intelligible principles” and broad delegations have been upheld.[vi] However, there has been some momentum toward reviving the nondelegation doctrine,[vii] but the view that the nondelegation doctrine should return full-throttle has not become a majority opinion…yet.

In the summer of 2019, in Gundy v. United States, a plurality of justices upheld Congress’ delegation to the Attorney General in the Sex Offender Registration and Notification Act (“SORNA”), which requires sex offenders to register in their state.[viii] Congress delegated to the Attorney General “the authority to specify the applicability of the requirements . . . and to prescribe rules for the registration of any such sex offenders . . .”[ix] The Court had to decide whether Congress violated the nondelegation doctrine by not setting out an “intelligible principle” to guide the Attorney General’s discretion.

Gundy was not a successful attempt to rebirth the nondelegation doctrine. Writing for the plurality in Gundy, Justice Kagan upheld the statute’s delegation to the Attorney General, reading in an “as soon as feasible” requirement, and thus finding an “intelligible principle.”[x] Justice Kagan was required to do some hefty statutory interpretation theatrics to find this standard and deem the delegation permissible.

 Justice Alito concurred in the Gundy decision, but increased the revival momentum, stating “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.”[xi] Justice Gorsuch, in a much longer dissent, vehemently argued to reconsider decades of jurisprudence now.[xii] Importantly, only 8 justices participated in the case; Justice Kavanaugh did not take part.[xiii]

More recently, Justice Kavanaugh, now sitting on the bench, all but admitted he is willing to reconsider the nondelegation doctrine in his concurrence in Paul v. United States.[xiv] Justice Kavanaugh wrote, “Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”[xv]

Furthermore, Justice Kavanaugh’s past statements regarding nondelegation hint at what Justice Kavanaugh means by “further consideration,” and what may be in store for the future of the doctrine. For instance, Justice Kavanaugh has said “excessive delegation may be [a] problem.”[xvi] Justice Kavanaugh has also stressed the need for judges to look at the “precise text of the Constitution,” adding “we do not ignore the text of the Constitution simply because it was ratified 225 years ago, or may be outdated, or has not adapted to modern conditions.”[xvii] Justice Kavanaugh could easily argue this point with proponents of the nondelegation doctrine, who claim agencies are necessary to decrease congressional workload add expertise to the process. The Constitution, Justice Kavanaugh would argue, cannot be adapted just because of the modern needs for agencies,[xviii] even if the doctrine is necessary to decrease congressional workload and adds expertise to the process. [xix]  The Constitution explicitly vested legislative powers in Congress.[xx] Even more, delegation to agencies nor agencies themselves are even in the Constitution, even if agencies do make our government more effective.

Therefore, the next time a nondelegation doctrine case is heard by the Supreme Court, Justice Kavanaugh will likely make up a new majority who will revive the nondelegation doctrine and strike down delegations to agencies.[xxi] This will alter the way agencies operate, wreaking havoc on the administrative state and the government at large. For as Justice Kagan warned in Gundy, “. . . if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional . . .”[xxii]

*Molly Williams is an Associate Editor on MJEAL. They can be reached via email at mollywi@umich.edu.


[i] U.S. Const. art. I, § 1.

[ii] Mistretta v. United States, 488 U.S. 361, 372 (1935).

[iii] J.W. Hampton, Jr. & Co v. United States, 276 U.S. 394, 409 (“if Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not forbidden delegation of legislative power.”)

[iv] Mistretta v. United States, 488 U.S. at 427 (when majority upheld Congress’ delegation to Sentencing Commission to formulate guidelines for sentencing, Scalia dissents, arguing the delegation is outside the constitutional structure).

[v] Panama Ref. Co. v. Ryan, 293 U.S. 388, 415 (1935) (holding this was not a constitutional delegation because no standard given to executive branch whatsoever. The Act did not “state whether, or in what circumstances or in what conditions, the President is to prohibit the transportation” of petroleum products); A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541 (1935) (holding this was not a constitutional delegation because it gave the executive branch too much discretion. Giving President power to approve codes of “fair competition” in cooperation with members of the poultry industry was an unconstitutional delegation of congressional power because “the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, [was] virtually unfettered.”).

[vi] E.g., Whitman v. AM. Trucking Ass’ns, 531 U.S. 457, 474 (2001) (after listing broad intelligible principles that have been upheld, argues that clearly this disputed section of the Clean Air Act is “well within the outer limits of our nondelegation precedents”); Touby v. United States, 500 U.S. 160, 165-167 (1991) (Court found intelligible principle in Controlled Substance Act, which authorized the Attorney General to designate, on expedited temporary basis, new drugs that it would be a crime to possess or sell if doing so was “necessary to avoid an imminent hazard to the public safety”); Yakus v. United States, 321 U.S. 414, 420 (1944) (Court found intelligible principle in wartime conferral of agency power to fix prices of commodities at levels “that will be generally fair and equitable and will effectuate the purposes of the Act”).

[vii] E.g., DOT v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1241-1244 (2015) (Justice Thomas argued that “the Vesting Clauses are exclusive and the branch in which a power is vested may not give it up or otherwise reallocate it,” and that “our modern separation-of-powers jurisprudence has departed from the original meaning in the Constitution); Indus. Union Dep’t, AFL-CIO v. API, 448 U.S. at 687 (even in cases where it was “difficult to imagine a more obvious example of Congress simply avoiding a choice,” the Court still upheld the delegation. “If we are ever to reshoulder the burden of ensuring that Congress itself make the critical policy decisions, these are surely the cases in which to do it.”)

[viii] Gundy v. United States, 139 S. Ct. 2116 (2019).

[ix] Id.

[x] Id. at 2128-2131.

[xi] Id. at 2131.

[xii] Id.

[xiii] SCOTUSblog, Gundy v. United States, https://www.scotusblog.com/case-files/cases/gundy-v-united-states/.

[xiv] Ronald W. Paul v. United States, 140 S. Ct. 342 (2019).

[xv] Id. at 369.

[xvi] Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2154 n.177 (2016) (reviewing Robert A. Katzmann’s book, Judging Statutes, in which Justice Kavanaugh analyzes Chevron deference at length, but feels compelled to write in a footnote about excessive delegation).

[xvii] Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1913-1914 (2014) (explaining why the legislative veto in INS v. Chadha was unconstitutional; just because “things have changed since the Founding” and Congress thought “we should not be bound by that outdated text of Bicameralism and Presentment Clauses,” a large majority of the Supreme Court said “No.”)

[xviii] Brett M. Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1913-1914 (2014).

[xix] E.g., Indus. Union Dep’t, AFL-CIO v. API, 448 U.S. 607, 684-685 (1980).

[xx] U.S. Const. art. I, § 1.

[xxi] See Gundy v. United States, 139 S. Ct. at 2136 (for instance, Justice Gorsuch advocates replacing an intelligible principle with a with a less deferential “fill up the details” requirement. Less deference to standards in statutes likely means more delegations will get struck down.)

[xxii] Gundy v. United States, 139 S. Ct. at 2120.

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