Earlier this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court but not decided. I noted that the Court could use this case—in which a substantial amount of discretionary authority appeared to have been delegated to the Attorney General—as a vehicle for reasserting the viability of what’s been called the non-delegation doctrine.

This doctrine holds that the purpose of the separation of powers was to ensure that the power to make the laws, and the power to enforce them, would not fall into the same hands. This, the Framers believed, was the source of tyranny and thus a threat to liberty. Implicit in the separation of powers, then, is the idea that Congress cannot delegate its exclusive legislative authority under the Constitution’s Article I to either of the other two branches.

However, in over 200 years, the Court has only invoked the non-delegation doctrine in two cases, both in 1935. But since that time—despite enormous growth in the number and rule-making power of federal agencies—the Court has never found that Congress had unconstitutionally delegated legislative power to the president or an agency of the executive branch. The Court’s reticence in this respect has fostered the growth of the vast government bureaucracy that is now called the administrative state.

Since 1935, whenever it was confronted with a claim that a statute had delegated legislative authority, the Court avoided that conclusion by finding that Congress had adopted an “intelligible principle” in the relevant statute, which was deemed—despite its lack of a clear meaning—to have sufficiently limited the agency’s discretion to avoid an unconstitutional delegation of legislative authority.

This judicially-created idea arose because it has always been understood that Congress can delegate to the executive branch the authority to execute or implement what Congress has decided by statute, while legislative authority has always been seen as the unbounded discretion that only a legislature possesses. Hence, in order to prevent a delegation of legislative authority, the statute must place some limits on the agency beyond which it cannot go. The intelligible principle was seen as an expression by Congress—somewhere in the statute—that created just such a limit on the discretion of the agency. By legislating this limit, it was thought, Congress had reserved to itself the unbounded legislative authority conferred by the Constitution.

The Gundy case was accepted by the Court specifically to review its claim that Congress had delegated legislative authority to the Attorney General, enabling him to both decide whether a law would apply to Gundy and then to prosecute him if he disobeyed it. This, in theory, would have placed in the Attorney General both the authority to make a law and the power to enforce it—one of the things the Framers thought would be a source of tyranny and a danger to liberty. On the other hand, if an intelligible principle could be found in the statute, the attorney general’s authority would have a limit and would thus no longer be seen as delegating the discretion inherent in legislative authority.

Only eight justices heard the case because Justice Kavanaugh had not taken his oath when the case was argued in early October 2018. In the end, the four liberal justices read the statute as essentially requiring the Attorney General to apply the law to Gundy, thus limiting the AG’s discretion sufficiently to avoid a conclusion that Congress had delegated legislative authority to him.

Three justices—Gorsuch, Chief Justice Roberts and Justice Thomas—dissented from this reading of the statute, concurring in an opinion by Gorsuch who challenged not only the four liberal justices’ reading of the statute but also the whole idea that a vague phrase like “intelligible principle” should be a talisman for determining whether an unconstitutional delegation has occurred.

Justice Gorsuch’s attack on the intelligible principle idea is particularly noteworthy. He described it as an overly broad term that obscures the real questions that the Court must answer when dealing with a potential delegation of legislative authority. The most important of these questions, he said, is “did Congress, and not the Executive Branch, make the policy judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.” This formulation will in the future prevent the courts from avoiding the question of whether Congress has delegated legislative authority by simply citing words in the statute and calling it an intelligible principle—which in effect is exactly what the majority did in Gundy. In the future, if the dissenters have their way, it will be necessary for the defenders of a statute to show that Congress made the key policy decisions in a challenged statute.

In an unusual move, Justice Alito concurred in the result of the liberals’ reading, but not in the reasoning. This resolved the case 5-3, but in his concurring opinion Alito wrote that “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.”

With this language, Justice Alito disposed of the Gundy case, which avoided an embarrassing  4-4 tie and in effect signed on to the view expressed by the dissenters (Gorsuch, Roberts and Thomas). By saying that he was willing to reconsider the approach the Court has taken for 84 years, he was going back to the jurisprudence that underlay the two 1935 decisions—Schechter Poultry and Panama Refining—that held statutes unconstitutional because they delegated legislative authority to the executive branch.

This is significant. If Justice Kavanaugh were to make up such a majority—and his decisions as a member of the DC Circuit Court suggest that he is receptive to this view—there are now five conservative constitutionalists on the Court who will, for the first time, be able to reinvigorate the non-delegation doctrine. Many lawyers and legal scholars had long argued that the doctrine was dead, but apparently rumors of its demise were exaggerated.

The signal from the Court was clear. It will mean that many litigants challenging the rules of the administrative state will be arguing in the future to a Supreme Court that is ready to listen to a view that the statute on which a rule or regulation was based delegated an unconstitutional degree of authority to the agency that made the rule.

We appear to be at the threshold of an interesting period in constitutional law.