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

Abstract

In Gundy v. United States, for the first time since 1935, four justices expressed a willingness to revisit the nondelegation doctrine that has been left undisturbed for over eighty years. Justice Neil Gorsuch proposed a new test for approaching nondelegation challenges. 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 non-legislative responsibilities to either the judicial or executive branch. The three prongs of his analysis form the new Gorsuch test. Given the split on the issue, the importance of understanding Justice Gorsuch’s Gundy dissent becomes paramount. This student Note is one of the first academic pieces to situate the Gorsuch test within the nondelegation doctrine. It argues that the test is stricter than any prior version and would severely curtail the ability of Congress to give agencies power, thus limiting the administrative state. Part I introduces the disputed statute in Gundy, the factual circumstances underlying the case, the debates in the briefs and at oral argument, and the three fractured opinions. The case history reveals the neither the Court nor the parties significantly considered a new test for the nondelegation doctrine. Justice Gorsuch’s dissenting opinion, outlined in Part I, has three salient features: a statutory reading, an originalism discussion, and his proposal. Part II considers the original understanding and history of the nondelegation doctrine, criticizing Justice Gorsuch for omitting pertinent evidence from the text, constitutional convention, early legislation, contemporary state interpretations, and the first Supreme Court nondelegation opinions. Then, it explores the case law and past proposals for a narrower nondelegation test than the “intelligible principle,” emphasizing that no court has ever rigorously enforced the nondelegation principle, even as the administrative state grew exponentially. Part III considers the weaknesses and potential impact of the Gorsuch test. It analyzes Justice Gorsuch’s previous opinion on the question, past Supreme Court nondelegation tests, the effects on other broad statutes, the need for doctrinal clarity, and a potential application of his proposal. Ultimately, this Note concludes that the problems of clarity and application caution against its adoption.