Gundy V United States

Non-Delegation Doctrine Update

In this Competitive Enterprise Institute article, it is stated that there is a long road ahead to take legislative powers away from U.S Administrative authorities but this U.S. Supreme Court case are taking the next steps towards limitations.

Since before the United States was founded, it was understood for centuries that the legislature could not delegate their lawmaking powers by allowing the executive to decide what the laws are. This is called the non-delegation doctrine.

Unfortunately, these kinds of delegations have allowed unelected bureaucrats to write the laws that the American citizens live under. When the only constraint is to act in the “public interest,” anything the agency wants to do satisfies that requirement. Many of the people in these agencies are protected by civil service laws preventing them from being fired, even by the president of the United States. They are effectively an unaccountable oligarchy for which even the courts are required to defer to their judgment.

While Congress could take back the power they gave away, they won’t. The filibuster/cloture rule in the Senate effectively requires 60% agreement, meaning either party could block any attempt by Congress to control these agencies. Secondly, many in Congress actually like the current state of affairs, as it allows them to avoid responsibility. They can pass laws that tell agencies to go “do good things,” and if the agency does something that has the side-effect of harming people, members of Congress can say “I didn’t do that it was the agency, but I will go fix it. Vote for me!”

Returning to the Gundy case, Congress passed the Sex Offender Registration and Notification Act (SORNA) for monitoring and tracking sex offenders, usually by requiring them to register with state sex offender registries. Congress decided what to do going forward for future sex offenders, but as to past sex offenders, lawmakers could not agree. Instead, Congress decided to delegate to the attorney general the responsibility to “specify the applicability” of SORNA for such past offenders and write rules governing the behavior of these people. As Justice Gorsuch noted, the attorney general is effectively given the power “to write his own criminal code governing the lives of a half-million citizens.”

‘Gundy’ Decision Could Signal Fundamental Reform of Administrative State

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