Gundy v. United States: Supreme Court signals possible willingness to act on nondelegation principle

Washington, D.C.; June 20, 2019: Today the U.S. Supreme Court issued its opinion in Gundy v. United States. At issue is the nondelegation doctrine, a principle that limits Congress’s delegation of its lawmaking power to regulatory agencies and other entities.

Todd Gaziano, director of Pacific Legal Foundation’s Center for the Separation of Powers, issued the following statement:

“Today’s set of opinions is the most encouraging move to reinvigorate the nondelegation principle in 85 years. Though Gundy itself was not resolved well, the non-plurality opinions suggest there may be five members of the current Court who are willing to reexamine the Court’s doctrine and increase the Court’s role in policing congressional delegations of lawmaking authority. The powerful and likely prophetic three-justice dissent by Justice Gorsuch (with Roberts and Thomas), together with Justice Alito’s explicit statement that he is willing to revisit the nondelegation doctrine when a majority of the Court is available to do so, signals that five current justices would be willing to act, if Justice Kavanaugh is so disposed.

“Gorsuch’s and Alito’s opinions together are nothing short of an open invitation to litigants and lower court judges to present cases to the high court that could fully reinvigorate the nondelegation principle in the foreseeable future. Pacific Legal Foundation is delighted to take up that invitation.”