The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation

by Johnathan Hall

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Abstract

The future of nondelegation is uncertain. Long considered an “axiom in constitutional law,” the nondelegation principle has almost never been seriously enforced—from the founding of the country to present day. After the Supreme Court’s decision in Gundy v. United States, that truism may soon change.

For much of its recent history, the Court has approached nondelegation challenges using the “intelligible principle” test. Now, for the first time in many years, five Justices have indicated a willingness to revisit that test. In his dissenting opinion in Gundy, Justice Gorsuch proposed a new test—the “Gorsuch test”—for adjudicating nondelegation disputes. He averred that a legislature can only give power under three circumstances: (1) to “fill up the details”; (2) to make the application of a rule dependent on certain executive fact-finding; or (3) to assign nonlegislative responsibilities to either the judicial or executive branch.

This Note is among the first scholarly pieces to examine the Gorsuch test and its potential implications for administrative law. By tracing previous nondelegation tests and proposals, this Note argues that Justice Gorsuch’s proposal would severely curtail Congress’s ability to transfer authority efficiently, limit the administrative state, imperil potentially hundreds of thousands of statutes, cause doctrinal confusion, and force a change that will be difficult to apply. Ultimately, the Court should not adopt this proposal and instead continue to apply the decades-old intelligible principle test.

The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation

by Johnathan Hall

Click here for a PDF file of this article

Abstract

The future of nondelegation is uncertain. Long considered an “axiom in constitutional law,” the nondelegation principle has almost never been seriously enforced—from the founding of the country to present day. After the Supreme Court’s decision in Gundy v. United States, that truism may soon change.

For much of its recent history, the Court has approached nondelegation challenges using the “intelligible principle” test. Now, for the first time in many years, five Justices have indicated a willingness to revisit that test. In his dissenting opinion in Gundy, Justice Gorsuch proposed a new test—the “Gorsuch test”—for adjudicating nondelegation disputes. He averred that a legislature can only give power under three circumstances: (1) to “fill up the details”; (2) to make the application of a rule dependent on certain executive fact-finding; or (3) to assign nonlegislative responsibilities to either the judicial or executive branch.

This Note is among the first scholarly pieces to examine the Gorsuch test and its potential implications for administrative law. By tracing previous nondelegation tests and proposals, this Note argues that Justice Gorsuch’s proposal would severely curtail Congress’s ability to transfer authority efficiently, limit the administrative state, imperil potentially hundreds of thousands of statutes, cause doctrinal confusion, and force a change that will be difficult to apply. Ultimately, the Court should not adopt this proposal and instead continue to apply the decades-old intelligible principle test.