2020] DELEGATION AND TIME 1933
“intelligible principle”4—“clearly delineat[ing] the general policy, the public
agency which is to apply it, and the boundaries of this delegated authority.”5
And, once again, in Gundy, a majority of the Court rejected the constitutional
challenge, with the plurality concluding that the statutory “delegation easily
passes constitutional muster.”6
Although the nondelegation doctrine technically remains the law of the
land, the Supreme Court has only struck down two (or maybe three) statutory
delegations as unconstitutional—all back in the 1930s.7 Since then, there
have been many unsuccessful challenges, of which Gundy is but the most
recent.8 These nondelegation challenges, like the challenge in Gundy, have
focused almost entirely on the breadth and substance of legislative delegation
and whether it complies with the intelligible principle test.9 In other words,
the judicial inquiry has examined the substantive transfer of lawmaking
authority from Congress to the administrative state.
Gundy, ho wev er, i s al so no tewo rth y bec ause onl y fou r Jus tic es we re w illi ng
to continue to embrace a toothless nondelegation doctrine.10 Justice Alito cast
the fifth and decisive vote because “it would be freakish to single out the
provision at issue here for special treatment.”11 Justice Alito made clear,
however, that “[i]f a majority of this Court were willing to reconsider the
4. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928).
5. Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).
6. Gundy, 139 S. Ct. at 2121; cf. id. at 2131 (Alito, J., concurring in the judgment)
(“Because I cannot say that the statute lacks a discernable standard that is adequate under the
approach this Court has taken for many years, I vote to affirm.”).
7. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 550–51 (1935);
Panama Ref. Co. v. Ryan, 293 U.S. 388, 433 (1935). As Cass Sunstein quipped, “[w]e might say
that the conventional doctrine has had one good year, and 211 bad ones (and counting).” Cass
R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Schechter Poultry and Panama
Refining Co. are the two cases usually cited as the only successful nondelegation doctrin e
challenges, but the Court in Carter v. Carter Coal Co. seemed to invalidate one provision of the
Bituminous Coal Conservation Act on nondelegation grounds in an opinion that struck down
the rest of the law for violating the Commerce Clause. See Carter v. Carter Coal Co., 298 U.S.
238, 311, 323–24 (1936). But see Alexander “Sasha” Volokh, The Shadow Debate over Private
Nondelegation in DOT v. Association of American Railroads, 2014–2015 CATO SUP. CT. REV. 359,
372 (2015) (arguing that “when the Carter Coal Court talks about ‘legislative delegation in its
most obnoxious form,’ it’s much more plausible that this refers to the Due Process Clause”).
8. See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472–76 (2001) (surveying
unsuccessful nondelegation challenges).
9. See Gundy, 139 S. Ct. at 2148 (Gorsuch, J., dissenting) (arguing that the nondelegation
doctrine should not permit Congress to “hand off to the nation’s chief prosecutor the power to
write his own criminal code”).
10. Id. at 2120, 2129–30. Further, as Gary Lawson observes, “Gundy is the first time since
1935 that more than two justices in a case have expressed interest in reviving some substantive
principle against subdelegation of legislative authority.” Gary Lawson, “I’m Leavin’ It (All) up to
You”: Gundy and the (Sort-of) Resur rection of the Subdelegation Doctrine, 2018–2019 CATO SUP. CT.
REV. 31, 33 (2019). Two Justices had expressed such an interest in 1981. See Am. Textile Mfrs.
Inst. v. Donovan, 452 U.S. 490, 543–48 (1981) (Rehnquist, J., dissenting).
11. Gundy, 139 S. Ct. at 2131 (Alito, J., concurring in the judgment).