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.

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