November 09, 2018

Gundy v. U.S.: Will the Supreme Court revitalize the nondelegation doctrine?

Trish McCubbin

In Gundy v. United States, the petitioner urges the U.S. Supreme Court to strike down under the nondelegation doctrine a statute authorizing the U.S. Attorney General to adopt rules requiring the registration of certain sex offenders because Congress failed to address the “fundamental policy questions” that would be at issue in the Attorney General’s rulemaking. The Court has not used the nondelegation doctrine in more than 80 years to declare a statute unconstitutional. However, in more recent years the Court has developed administrative law principles, most notably with its major rules doctrine, to give little or no deference to agency rules that address significant issues without clear congressional guidance. Now some justices may seek in Gundy to revitalize the nondelegation doctrine as a tool to rein in the administrative state by not merely invalidating individual rulemakings but striking down entire statutory provisions as unconstitutional.

The nondelegation doctrine

The nondelegation doctrine stems from Article I, Section 1 of the U.S. Constitution and requires Congress to provide an “intelligible principle” to guide an agency’s rulemaking discretion. J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394 (1928). Only twice—both times in 1935—has the Supreme Court used the nondelegation doctrine to strike down a statute. Instead, the courts consistently have upheld delegations with minimal guidance from Congress, such as requiring the Federal Communications Commission (FCC) to regulate broadcasting “as public interest, convenience or necessity requires” or the Attorney General to designate controlled substances as “necessary to avoid an imminent hazard to the public safety.” Nat’l Broad. Co. v. United States, 319 U.S. 190 (1943); Touby v. United States, 500 U.S. 160 (1991).

In its most recent nondelegation decision, Whitman v. American Trucking Associations, Inc., the Court concluded that the Clean Air Act provided the necessary intelligible principle merely because Congress directed the U.S. Environmental Protection Agency (EPA) to set national air quality standards at the level “requisite to protect the public health.” 531 U.S. 457 (2001). The Court found that the term “requisite” required EPA to set a standard “sufficient, but not more than necessary.”

The Sex Offender Registration and Notification Act

In Gundy, the petitioner claims that Congress provided no guidance whatsoever—and hence no intelligible principle—when directing the Attorney General to establish rules for the registration of certain sex offenders under the federal Sex Offender Registration and Notification Act (SORNA). Although Congress established a detailed registration regime for sex offenders convicted after the effective date of SORNA, it specified no details for the registration of offenders convicted before then (called “pre-Act offenders”). Instead, Congress directed the Attorney General to determine whether pre-Act offenders should register at all and, if so, under what conditions.

In his brief, the petitioner argues that the pre-Act offenders provision “does not tell an Attorney General whether, when, or how she should expand the statute to cover pre-Act offenders.” He argues the statute “states no policy objective and lists no criteria or standards for the [agency] to consider.”

The government, by contrast, claims that Congress intended pre-Act offenders to register “to the maximum extent feasible.” The feasibility standard is not expressly stated in SORNA. Rather, the government argues that it stems from (1) Congress’s express goal of establishing a “comprehensive” registration system and (2) Congress’s recognition that registering pre-Act offenders might raise logistical challenges if, for example, all offenders (whether convicted two years or two decades ago) were required to register by the very same deadline. Finally, the government claims the feasibility standard is no less an intelligible principle than the vague congressional language upheld in earlier nondelegation cases.

Parallels in Gundy to the major rules doctrine

The petitioner suggests that because SORNA’s delegation to the Attorney General implicates “fundamental policy questions,” the nondelegation doctrine should be applied more forcefully than in prior cases, and Congress must provide particularly clear agency guidance. The petitioner argues that two issues about the registration of pre-Act offenders are “fundamental” or “significant.” The first is SORNA’s potentially retroactive imposition of criminal liability. The second is federalism and the interplay between sex offenders convicted under state law and the federal registration requirement.

The petitioner’s emphasis on the “fundamental” or “significant” issues in the constitutional challenge to SORNA has implications for the major rules doctrine of administrative law, which gives little or no deference to agency rules that address significant issues without direction from Congress. As the Supreme Court wrote in Utility Air Regulatory Group v. EPA when it invalidated certain greenhouse gas regulations, we “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” 134 S. Ct. 2427 (2014). Likewise, the D.C. Circuit’s Judge Brett Kavanaugh observed, when criticizing the FCC’s net neutrality rule, that in “a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorization for major agency rules of this kind.” U.S. Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc).

In short, the major rules doctrine demands that Congress—rather than agencies—set the important policies of the nation. Just as the major rules doctrine reflects the Court’s increasing concern about unbridled agency authority, some justices may use Gundy to reinvigorate the nondelegation doctrine to address that same concern. After all, at least four justices voted to hear the case even though there was no circuit split and all 11 appeals courts had concluded that SORNA complied with the nondelegation doctrine.

If the Court demands clear guidance from Congress because of “fundamental” or “significant” issues at stake in SORNA, the decision could open many environmental, energy, and natural resources statutes to nondelegation challenges.

Trish McCubbin

Trish McCubbin is a professor at the Southern Illinois University School of Law and a former co-chair of the Section’s Constitutional Law Committee.