The Nondelegation Doctrine After Gundy
The Supreme Court’s decision in Gundy v. United States. did not revive the nondelegation doctrine by applying it to strike down a statute for the first time since 1935. However, the various opinions in Gundy suggest that a majority of the Court may be willing to entertain delegation challenges in the near future. The revival of the nondelegation doctrine would have significant implications for the future of the administrative state, but those implications are unclear because of the lack of scholarship specifically addressing the appropriate scope and application of a revived nondelegation doctrine.
In Part I, this article describes the current debate over, and legal status of, the nondelegation doctrine at the federal level. It analyzes the Court’s opinion in Gundy in Part II, explaining how that decision indicates the Court’s interest in reviving the nondelegation doctrine. Part IIII takes some initial steps towards identifying the appropriate scope and logic of the nondelegation doctrine, drawing upon two sources: the historical application of the doctrine in the 19th Century, and the contemporary application of the doctrine at the state level today.
