In a statement published with the U.S. Supreme Court’s November 25 orders, Justice Brett Kavanaugh hinted that he would consider reviving the nondelegation doctrine. Suggesting that at least some congressional delegations of power are in his view unconstitutional, Kavanaugh argued that Justice Neil Gorsuch’s analysis of the nondelegation doctrine in Gundy v. United States (2019) “may warrant further consideration in future cases.” 

 

The nondelegation doctrine is a legal principle that prohibits legislative bodies from delegating their legislative powers to executive agencies or to private entities. Gorsuch argued in his Gundy dissent that Congress cannot let administrative agencies decide major policy questions.

 

In his statement, Kavanaugh also pointed to a 1980 opinion written by former Chief Justice William Rehnquist, which said that “major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.” Kavanaugh said that the arguments made by Rehnquist and Gorsuch “raised important points that may warrant further consideration in future cases.”

 

Law professor Jonathan Adler, a critic of impermissibly delegated legislative power, responded to Kavanaugh’s statement saying that if Kavanaugh’s message is “not an invitation for litigants to bring additional non-delegation challenges” then he does “not know what is.”

 

Ian Millhiser, a Supreme Court writer for Vox who defends delegation as settled law, suggested that Kavanaugh’s statement is “significant because it shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power.”