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Friday, June 21, 2019

The Coming Lopez Moment for Non-Delegation

In Gundy v. United States, the Supreme Court rejected another claim that a federal statute delegated too much discretion to the Executive Branch. The separate opinions, though, indicate that we are not far from the point when this doctrine will be invoked to strike down a federal law. After all, Panama Refining has never been overruled by the Court. Thus, nothing need be expressly overruled. 

What form will this action take? My thought is that it will look much like United States v. Lopez. In other words, the Court will find a very inconsequential statute on which to take a stand holding that too much delegation will occur. This decision will create a lot of noise, but will not be followed up because it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations. But if such a outer-boundary decision causes Congress to write statutes more carefully, count me in. 


Posted by Gerard Magliocca on June 21, 2019 at 08:55 PM | Permalink


Couldn't there also be "invalidly executed delegations" ? That seems like a good tool for the court to put in their quiver.

Please give the dilettante Mike from prawfsblawg credit.

like: "Congress delegated authority to regulate river commerce to the river commission however, the river commission did not publish specific regulations with enough clarity to be considered good law under our understanding of "due process" in cases 1 , 2 and 3. Too vague to be a law, hence, invalidly delegated due to lack of execution to a standard of law a citizen is entitled to expect from their government before it interferes or restricts with their practice of their trade or livelihood."

Posted by: Mike | Jun 25, 2019 7:14:27 PM

Interesting, but I don't see great deal here. And in fact, the court stated clearly that it happened in the past ( violation of non delegation ) here I quote from the opinion:

Only twice in this country’s history (and that in a single year) have we found a delegation excessive—in each case because “Congress had failed to articulate any policy or standard” to confine discretion.

End of quotation:

But moreover, the opinion has stated clearly, what is the criteria, means : specifying applicability, not creating it. The rules for executing and performing what has been legislated, not beyond it. here I quote:

Recall again the delegation provision at issue. Congress gave the Attorney General authority to “specify the applicability” of SORNA’s requirements to pre-Act offenders.§20913(d). And in the second half of the same sentence,Congress gave him authority to “prescribe rules for the registration of any such sex offenders... who are unable to comply with” subsection (b)’s initial registration requirement. Ibid. What does the delegation in §20913(d) allow the Attorney General to do?

And more:

It was to give him the time needed (if any) to address the various implementation issues involved in getting pre-Act offenders into the registration system. “Specify the applicability” thus does not mean “specify whether to apply SORNA” to pre-Act offenders at

End of quotation:

So, applicability, not creativity from scratch. It is reasonable, and normal. No issue here.

One may reach the ruling here:



Posted by: El roam | Jun 22, 2019 6:13:36 AM

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