Decoding Nondelegation after Gundy: What the Experience in State Courts Tells Us about What to Expect When We're Expecting

01 January 2022

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent in Gundy, drawing a line between policy discretion, which cannot be delegated, and authority to fill up details or find facts triggering policies, which can be. Whether observers’ view of the prospect of Court-imposed limits on delegation is apocalyptic or euphoric, virtually everyone expects such limits to be highly consequential. While these opinions about the nondelegation doctrine are understandable, they are ultimately speculative. This Article offers a more data-driven evaluation of what implementation of the Gundy dissent’s line drawing would portend for administrative law. Using the underexamined laboratory of the nondelegation doctrine in the states, where the doctrine has always had more life than at the federal level, this Article shows that states that adhere closely to the lines drawn by the Gundy dissent are no more or less likely to invalidate statutes passed by state legislatures than states that adhere to the intelligible principle formulation. The lack of a relationship between doctrinal formulation and outcomes suggests we will only know whether a revolution is afoot based on what the Supreme Court actually does over a series of cases, not on what it says it is going to do. Moreover, the research findings suggest significant limitations on the ability of the Gundy dissent’s approach to provide any ex ante guidance to the lower courts, or even future Supreme Courts, about what the nondelegation doctrine prohibits—an observation that suggests significant logistical and institutional problems inherent in the entire project of resuscitating the doctrine.