In the Wall Street Journal, David Rivkin and Lee Casey celebrate the possible revival of the nondelegation doctrine in Gundyv. United States: Alito Teases a Judicial Revolution– His concurrence suggests the dissenters will soon prevail in restoring the ‘nondelegation’ doctrine.
Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “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.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.
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Justices Gorsuch’s and Alito’s opinions, together with Justice Kavanaugh’s strong separation-of-powers jurisprudence as an appellate judge, suggest that a majority of justices are prepared to reimpose proper constitutional restraints on congressional delegations. All they need is a suitable case.
But at Prawfsblawg, Rick Hills (echoing earlier thoughts by Adrian Vermeule and Gerard Magliocca) is skeptical: Gundy, Constitutional Coalitions, and the Credible Commitment Problem of Constitutional Doctrine.
There is a high probability that the SCOTUS will, some time in the near future, strike down some statute as a way of sending the message that the Non-Delegation Doctrine remains a part of the judicially enforced Constitution — but that opinion will later be quietly nullified by lower courts just as Lopez itself was quietly nullified prior to Raich — with the SCOTUS’s tacit blessing of repeated cert denials. As [Gerard Magliocca] notes, the problem is that “it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations.
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The problem with unintelligible doctrines like the “intelligible principle” doctrine is coalitional instability. As I suggested in a different context back in 2015, “neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes.” Aided by a swing vote in the center, liberals plus the swing vote will invoke the mushy doctrine against conservative statutes; conservatives (plus the swing) will invoke it against liberal ones, and the doctrine itself will become little more than a marker for the essentially legislative discretion of the SCOTUS.
Professor Hills elaborates the argument in a followup post: Institutional Flip-Flops and Mushy Doctrine: Why Gorsuch’s Non-Delegation Revolution Won’t Happen (noting the absence of a "hard-edged, crisp, defection-proof doctrine" of nondelegation).
I agree this is a problem, and the vast academic writing about the nondelegation doctrine doesn't much help (and in fact may exacerbate it). What's needed is indeed a clear rule that limits delegations in accordance with the founding design that Justice Gorsuch sketches in his dissent. Justice Scalia thought it couldn't be done — hence his majority opinion in Whitman v. American Trucking Association largely declaring the nondelegation doctrine non-justiciable. It seems like a worthy academic challenge. I even have a title: "An Originalist Rule for Delegations." I hope someone (other than me) will undertake the project.
Posted at 6:19 AM