The Fifth Vote for Non-Delegation Commentary
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The Fifth Vote for Non-Delegation

The coming invigoration of the non-delegation doctrine, long-declared dead, is now nearly certain. In a recent statement, Justice Kavanaugh signaled his interest in revisiting the long-dormant doctrine in a future case. But, while Justice Kavanaugh’s statement all but confirms that the Court will breathe life into the non-delegation doctrine sometime soon, questions still remain about its ultimate scope and whether it can be applied in a predictable and coherent way.

The Gundy Opinions

The federal non-delegation doctrine has been less of a doctrine than a ghost story told to law students since it was last used to strike down a federal statute in 1935. In theory, if not, in fact, the non-delegation doctrine places limits on Congress’s power to vest decision-making authority in other branches of government, most notably, administrative agencies. But, despite renewed interest among some members of the Supreme Court in the years since the New Deal, there had been no great likelihood that the Court would animate the doctrine until the 2019 Gundy v. United States opinion. The statutory provision at issue in Gundy grants the attorney general (AG) the authority to apply provisions of the Sex Offender Registration and Notification Act (SORNA) retrospectively, that is, to conduct that took place before the statute was enacted. Although there were five votes to uphold the statute’s delegation of authority to the AG, no opinion commanded a majority of the Court. In her opinion for a plurality of four, Justice Kagan narrowed SORNA by reading into it a requirement for the AG to implement SORNA “as soon as feasible.” In light of this limitation on the AG’s discretion, she concluded, the provision “easily passes constitutional muster” because it gives the AG an “intelligible principle” to follow, which is all that the non-delegation doctrine requires.

Justice Alito provided the fifth vote to uphold the statute but made clear that he favored a more robust vision of non-delegation. He noted that, in another case, he would support an effort to “reconsider the approach we have taken for the past 84 years” if a majority of the Court was willing to take that step.

In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Gorsuch opined that, unlike Justice Alito, he “would not wait” for the next case to set out his vision for a robust non-delegation doctrine. Leaning heavily on a formalist conception of separation of powers, Justice Gorsuch opined that the structure of the Constitution demands the separation of legislative authority from the executive branch. Notably, he ventured that the “intelligible principle” test that has been the touchstone of the non-delegation doctrine for generations has “mutated” and has “no basis in the original meaning of the Constitution [or] in history.” Reaching back to pre-New Deal precedent, Justice Gorsuch drew a distinction between Congress’s responsibility to make policy decisions and its power to authorize agencies to “fill up the details.” While Congress is ultimately responsible for setting policy, Justice Gorsuch suggested that it would be constitutional for Congress to authorize the executive branch to “fill in even a large number of details. . . or to exercise non-legislative powers.”

Justice Gorsuch concluded with what can only be described as request to Justice Kavanaugh, who took no part in the Gundy opinion, to help make a majority to invigorate the non-delegation doctrine: “I remain hopeful,” wrote Justice Gorsuch in closing, that the Court will return to the issue of delegation “in a future case with a full panel.”

And Justice Kavanaugh Makes Five

After Gundy, a number of commentators noted that Justice Kavanaugh was likely to provide a fifth vote to invigorate the non-delegation doctrine at some future time. After all, the Gundy opinions split along conventionally partisan lines with the conservative justices’ opinions seeking a stronger non-delegation doctrine and the liberal justices seeking to maintain the status quo. But, if any doubt lingered, Justice Kavanaugh eliminated it in his recent Statement Respecting the Denial of Certiorari in Paul v. United States. Because the issues presented in Paul were the same as those raised in Gundy, Justice Kavanaugh agreed with the denial of cert. But, he wrote separately to comment that Justice Gorsuch’s Gundy dissent “may warrant further consideration in future cases.”

Although some commentators read this statement as an endorsement of Justice Gorsuch’s approach, Justice Kavanaugh carefully avoided adopting Justice Gorsuch’s distinction between policy and details and his distinction between legislative and non-legislative powers. Instead, Justice Kavanaugh connected Justice Gorsuch’s opinion to the so-called “major questions” doctrine of statutory interpretation. As described by Justice Kavanaugh, the major questions doctrine is a clear statement rule that suggests that courts should not defer to an agency’s interpretation of a statute that is “economically and politically significant” unless Congress clearly granted the agency this authority. Justice Kavanaugh read Justice Gorsuch’s dissent as an amended and constitutionalized version of major questions doctrine, prohibiting “dele­gations to agencies of authority to decide major policy ques­tions—even if Congress expressly and specifically delegates that authority.”

The Future of Nondelegation

The future of nondelegation is not yet written, but the opinions of Justices Gorsuch and Kavanaugh suggest two possible visions of its future scope. Justice Gorsuch’s vision is starkly formalist, relying on a distinction between “policy” and “details” and between legislative and non-legislative powers. His opinion, however, left unanswered the all-important questions of how to distinguish policy from detail and legislative from non-legislative powers. Each of these categories covers some distinct ground, but at the margins, in cases that are likely to be litigated, these categories surely blur, vesting significant discretion in the judge attempting to apply them.

By contrast, Justice Kavanaugh’s vision of non-delegation avoids the thorny categories of policy vs. details and legislative vs. non-legislative power. Instead, Justice Kavanaugh recognizes what could be considered a continuum—ranging from minor to major—within the realm of policy. In this view, only major questions of economic and political importance would be off-limits for delegation. But, here too, Justice Kavanaugh’s vision of non-delegation relies on impossibly fine judgments. What makes a policy question “major” rather than minor? How “important” must a statute’s economic and political importance be before it is considered a major question? Indeed, the Court’s major questions cases, including Brown & Williamson and King v. Burwell, do little to suggest that these questions can be answered in a predictable, coherent, and objective way.

These two visions of non-delegation are certainly not the only possible ways that the new doctrine may be invigorated. The final shape of the doctrine might depend on the case that the justices use as the vehicle to announce a new standard. And much will depend on the opinion’s author and whether the opinion is written in order to attract more than a bare majority. Because of these uncertainties, the Court’s next non-delegation case will be one to watch closely.


Evan C. Zoldan is a Professor of Law at the University of Toledo College of Law.  He researches legislation, including legislative power, the legislative process, and statutory interpretation. His work on legislative power questions whether Congress and state legislatures may target named individuals for special treatment. 


Suggested citation: Evan C. Zoldan, The Fifth Vote for Non-delegation, JURIST – Academic Commentary, December 14, 2019,


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