A Gundy Revival in the Age of Public Health Crises - Articles

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A Gundy Revival in the Age of Public Health Crises

Posted by: Chelsea Bennett on Jul 14, 2021

INTRODUCTION
In his Second Treatise of Government, John Locke wrote that “[the] power of the legislative . . . can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands.”[1] The Constitution represents such a positive grant of power,[2] and Article I, Section I provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.[3] Creating the nondelegation doctrine, the Supreme Court agreed with John Locke and interpreted Article I, Section I to mean that “no part to this legislative power can be delegated by Congress to any other department of the government, executive or judicial.”[4] However, the nondelegation doctrine has rarely been used to enforce any limits on the scope of congressional delegations of authority.[5] In Gundy v. United States, the nondelegation doctrine showed signs of revival for the first time since 1935.[6]

Though Justice Gorsuch wrote for only three justices in his dissent, the idea may soon become one of a majority of the Court. Justice Alito, writing a concurring opinion in Gundy, asserted that he would support an effort to “reconsider the [intelligible principle] approach,” but refused to do so with the dissent because he would do so only as part of a majority of the Court.[7] Justice Kavanaugh, who had been confirmed to the bench only after the oral arguments for Gundy, wrote favorably of Justice Gorsuch’s dissent, stating that, “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.”[8] In addition, Justice Barrett has made comments criticizing the intelligible principle as “notoriously lax” and contending that, like the Fifth and Fourteenth Amendments that limit the congressional power to make legislation, “certain constitutional provisions might limit Congress's otherwise expansive power to implement legislation as it sees fit.”[9]

This paper uses the responses to the SARS-CoV-2 (“COVID-19” or the “Coronavirus”) pandemic as an example, where lawmakers have enacted broad laws delegating authority in response to a threatening public health crisis,[10] discusses the effect of a national public health emergency on the nondelegation analysis, and argues that Justice Gorsuch’s “principles” of delegation should be more lenient in times of emergency.[11]

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[1] John Locke, Two Treatises of Government 193 (Thomas I. Cook ed. 1947).

[2] See McCulloch v. Maryland, 17 U.S. 316 (1819) (“The government of the Union[] . . .  is emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”).

[3] U.S. Const. art. I, § 1.

[4] Field v. Clark, 143 U.S. 649, 697 (1892).

[5] See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474–75 (2001) (noting that the Supreme Court has           “ ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law’ ” quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2364 (2001) (“It is, after all, a commonplace that the nondelegation doctrine is no doctrine at all.”); Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 381 (2017) (arguing that the nondelegation doctrine has never been a serious limit on congressional delegations of power).

[6] Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); see Kristin E. Hickman, Gundy, Nondelegation, and Never-Ending Hope, Regul. Rev. (July 8, 2019), https://www.theregreview.org/2019/07/08/hickman-nondelegation/ (explaining that Gundy represents hope that the Court will apply the nondelegation doctrine with more rigor in future cases). Cf. Whittington & Iuliano, supra note 5 (“Every few years, a court of appeals invokes the [nondelegation] doctrine to strike down a federal statute. The Supreme Court inevitably grants certiorari and overturns the appellate decision, holding that the statute is a constitutional delegation of legislative authority.”).

[7] Id. at 2130–31 (Alito, J., concurring).

[8] Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., concurring ) (statement of Justice Kavanaugh respecting the denial of certiorari).

[9] Amy Coney Barrett, Suspension and Delegation, 99 Cornell L. Rev. 251, 292–93 (2014). Cf. Jim Saksa, Barrett, with Scalia as Model, May Be a Moderate on Regulation, Roll Call (Oct. 8, 2020, 6:00 AM), https://www.rollcall.com/2020/10/08/barrett-with-scalia-as-model-may-be-a-moderate-on-regulation/ (offering pure conjecture for predicting future rulings of Justice Barrett).

[10] Compare Beshear v. Acree, No. 2020-SC-0313-OA, 2020 Ky. LEXIS 405, at *4–5 (Nov. 12, 2020) (finding valid under the Kentucky Constitution a Kentucky law authorizing its governor to act when he deems that action necessary), with Midwest Inst. of Health, PLLC v. Governor (In re Certified Questions from the United States Dist. Court), No. 161492, 2020 Mich. LEXIS 1758 (Oct. 2, 2020) (finding unconstitutional under the Michigan Constitution a state law authorizing the governor to enter orders to protect life and property or to control an emergency situation).

[11] See infra Part IV.

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