This post was originally published on Legal Planet. Reprinted with permission.
If you ask Supreme Court experts what keeps them up at night, the answer is likely to be the non-delegation doctrine. If you are among the 99.9 percent of Americans who've never heard of it, here's an explainer of the doctrine and what the 6-3 Court might do with it.
What's the nondelegation doctrine?
Simply put, the doctrine says that only the legislature can create new rules of law and that Congress cannot transfer this power to the executive branch or the judiciary. That sounds very reasonable. The big problem is that Congress often has to give discretion to the people implementing a law to fill in gaps, apply rules to particular circumstances, and deal with ambiguities. For instance, there are hundreds of toxic chemicals, and it's not realistic to think that Congress could make individual determinations about the risks of each chemical. That's why it gives that authority to experts at EPA. But how do you decide when the amount of discretion becomes so great that Congress has essentially given away the store?
Has the Supreme Court ever used the doctrine to overturn federal laws?
In 232 …
In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a blog post on Thursday, I think this is something of an overreaction.
As it happens, later that same day, the Supreme Court gave another signal that it is happy to allow a great deal of administrative discretion. The issue in the census case (Dept. of Commerce v. New York) was whether it was legal for the Commerce Secretary to add a question about citizenship to the census …
Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in order to slash the authority of administrative agencies. What we don't know yet is whether they can get a fifth vote, and how far they are willing to go.
The issue before the Court was whether the statute was an unconstitutional delegation of legislative power to the Attorney General. For almost 90 years, the test has been whether a statute contains an "intelligible principle" limiting executive discretion …