Kavanaugh Comment May Spur Crop Of Nondelegation Cases

Law360 (December 20, 2019, 3:36 PM EST) -- May Congress delegate legislative authority to executive agencies? The U.S. Supreme Court has long said yes. So long as “Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”[1]

But change may be afoot. After the Supreme Court’s decision last term in Gundy v. United States,[2] which featured a critical dissent by Justice Neil Gorsuch, many speculated that the court’s conservative wing may be prepared to revive the long-dormant nondelegation doctrine, and thereby limit...

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