Thoughts on Kavanaugh on Gundy

For several weeks, Supreme Court watchers and administrative law types have been waiting for the Court to resolve a petition for rehearing in Gundy v. United States, in which the Court narrowly upheld the Sex Offender Registration and Notification Act against a nondelegation challenge, with Justice Gorsuch writing a lengthy dissenting opinion.  Justice Kavanaugh had not yet been seated at the time of oral argument so did not participate in Gundy, and although some held out hope that the Court would grant rehearing, smart money assumed that the Court would deny rehearing but that one or more Justices were writing a statement to go along with that denial.  And that’s exactly what happened.  Simultaneously with the denial of rehearing in Gundy, the Supreme Court today denied a cert petition in a case called Paul v. United States which raised the same question as Gundy, and Justice Kavanaugh wrote a statement in Paul expressing a few thoughts particularly regarding Justice Gorsuch’s dissenting opinion in Gundy.

By way of review, Justice Gorsuch’s Gundy dissent surveyed the Court’s nondelegation cases historically and contended that the intelligible principle standard at the heart of that jurisprudence had gained “a life of its own” unmoored from traditional understandings.  Yet, admitting the need for some test to evaluate congressional delegations, Justice Gorsuch outlined what he described as three “important guiding principles” provided by the framers.  They are, first, that although Congress must “make the policy decisions when regulating private conduct, it may authorize another branch to ‘fill up the details.’”  Second, although Congress must “prescribe the rule governing private conduct, it may make the application of that rule depend on executive fact finding.”  Finally, “Congress may assign the executive and judicial branches certain non-legislative responsibilities.” 

My key objection to Justice Gorsuch’s opinion has been the inherent indeterminancy in distinguishing important policy decisions from mere details in the context of lengthy and complicated regulatory statutes where agency actions with substantial policy implications are often predicated on delegations that are not expressly stated but rather are implied by statutory ambiguities.  See Chevron.  Telling Congress it can’t use open-ended terms like reasonable, feasible, or in the public interest when it expressly delegates rulemaking power may be symbolically splashy. But if your goal is to meaningfully curtail policymaking by unelected agency officials, rejecting only those sorts of express delegations taps only a very small fraction of agency policymaking.  And given the inclination of certain commenters to shriek at even the slightest effort to cabin agency policymaking discretion, I am not at all convinced that the symbolism of rejecting a few magic words is worth the candle.  (For those who are interested, I have offered my own initial assessments of Justice Gorsuch’s dissent here and here.  I am working on a longer law review essay on this issue that I hope to make public at some point in 2020.) 

Turning back to today’s statement in Paul, Justice Kavanaugh wrote to suggest that Justice Gorsuch’s approach “may warrant further consideration in future cases.”  Fine. But elaborating, Justice Kavanaugh focused on the possibility that the Court might adopt “a nondelegation principle for major questions.”  Justice Kavanaugh read the Court’s precedents as requiring Congress to either “(i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce.”  And he suggested that Justice Gorsuch’s opinion would not allow that second category of delegations. 

By characterizing the delegations that Justice Gorsuch would reject as those that “expressly and specifically” delegate major policy questions to an agency, Justice Kavanaugh says absolutely nothing about implied delegations, and thus advances the narrowest possible reading of Justice Gorsuch’s proposed alternative nondelegation doctrine.  Undoubtedly, rejecting only express and specific delegations would remove some of the indeterminancy of trying to decide which implied delegations involve major questions and which concern mere details.  Nevertheless, the emphasis on express and specific delegations seems a further suggestion that any resurrection of the nondelegation doctrine will be more symbolic than real. 

On the other hand, Justice Kavanaugh’s reference to “major questions” in this context could be interesting, and arguably more concrete than Justice Gorsuch’s approach.  That precise term – major questions – carries a salience in the context of Chevron deference that it has not thus far with respect to the nondelegation doctrine.  In King v. Burwell, drawing from an earlier decision in FDA v. Brown & WIlliamson Tobacco Corp., the Supreme Court declined to extend Chevron deference to an Internal Revenue Service (IRS) interpretation of the Affordable Care Act on the ground that Congress could not have intended to delegate decisionmaking responsibility to the IRS, based on three key factors:  (1) the relevant provision was central to the statutory scheme; (2) the relevant provision was economically and politically significant; and (3) the IRS lacked expertise with respect to the subject matter driving the relevant provision.  Justice Gorsuch’s dissenting opinion in Gundy cited King and major questions doctrine, but as a suboptimal alternative to a more robust nondelegation doctrine, rather than as a test for evaluating delegations in the first instance.  Meanwhile, Justice Kavanaugh’s statement in Paul does not cite King at all, and I have previously raised questions regarding how King’s three factors might work, albeit in conjunction with Chevron rather than nondelegation analysis.  Regardless, although I do not know that Justice Kavanaugh intended as much, one wonders whether his reference to major questions could lead to a nondelegation standard that draws from King with at least a little more heft than Justice Gorsuch’s Gundy dissent initially offered.

In short, Justice Kavanaugh’s statement in the Paul cert denial is interesting and arguably has potential, but in which direction is completely unclear. 

kristin hickman

Professor Kristin Hickman is a legal scholar working in the fields of tax administration, administrative law, and statutory interpretation. In addition to the Of Interest blog, Professor Hickman authors the Administrative Law Treatise (with co-author Richard J. Pierce, Jr.) and has published scholarly articles in Columbia Law Review, Virginia Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Vanderbilt Law Review, and many other prominent U.S. and international publications. She holds the titles of Distinguished McKnight University Professor and Harlan Albert Rogers Professor of Law at the University of Minnesota Law School.