What’s Up with Gundy?

Posted on November 14, 2019 by Allan Gates

Last summer the Supreme Court announced its decision in Gundy v. United States.  Conservative advocates had eagerly followed the case, hoping it would restore the nondelegation doctrine to the glory days of 1935, the year Schechter Poultry and Panama Refining Co. v. Ryan used the nondelegation doctrine to cut down a broad swath of New Deal programs.

The decision in Gundy disappointed conservative hopes, but only by the slimmest possible margin.  A plurality of four justices — Justice Kagan joined by Justices Ginsburg, Breyer, and Sotomayor — voted to uphold the statute in question, following the very tolerant nondelegation analysis the Court has used consistently for decades.  Three justices — Justice Gorsuch joined by the Chief Justice and Justice Thomas — voted to invalidate the statute using a new and much more robust nondelegation analysis.  Justice Alito concurred in the judgment reached by the plurality, but only because a short-handed Court did not have a majority of Justices willing to establish a new (or resurrect a very old) nondelegation standard.  His opinion openly invited a new nondelegation challenge once the Court has a full complement of nine justices.  Justice Kavanaugh did not participate in Gundy because he was not on the Court when it heard oral argument.

College fellow Lisa Heinzerling wrote a very perceptive blog post about Gundy last May, three weeks before the decision was announced, noting that the Court was lingering over Gundy longer than any other case that Term.  In retrospect, the timeline is even more interesting than Lisa could have known.  Gundy was argued on the first day of the Term, October 2, 2018.  It was decided at the very end of the Term, June 20, 2019.  Justice Kavanaugh joined the Court on October 6, 2019.  Presumably, Justice Kavanaugh was in the room at every conference in which the Court struggled over how to resolve its 4-4 split over nondelegation in Gundy.  When one considers this timeline, Justice Alito’s open invitation for another nondelegation challenge packs special punch.

The significance of the unusual timeline was not lost on Gundy’s counsel, a New York public defender who had taken Gundy’s case farther than anyone could have expected.  She promptly filed a petition for rehearing.  Rehearing in the Supreme Court is extremely rare, but Gundy’s public defender aptly noted that her request presented one of the few circumstances that has prompted the Court to grant rehearing in the past, namely a short-handed Court that divided 4-4 with a new justice in place who could resolve the split if rehearing were granted.

The timeline of the Court’s consideration of Gundy’s petition for rehearing is also interesting.  The petition was filed on July 11 and scheduled for consideration at the Court’s October 1, 2019 conference.  Following that conference, the Court relisted the petition for consideration at the October 11, 2019 conference.  Since then it has been relisted four more times.  Most recently the petition has been scheduled for consideration at the November 15 conference. 

As the Justices ponder Gundy’s petition for rehearing, it seems likely they know if rehearing were granted, the result would be different the second time around.  Among other things, the Court is probably considering how the general public would react to seeing the Court flip on a do-over of a high profile constitutional case solely because a new Justice joined the Court, particularly when that Justice was confirmed by a bare partisan majority after a bruising confirmation hearing.

It is worth noting that there are petitions for certiorari pending in Paul v. United States and Caldwell v. United States, cases identical to Gundy, that were being held pending the decision in Gundy.  The Court might mitigate the public appearance of a highly political flip by taking one of those cases as the vehicle for addressing nondelegation.

Where Is Gundy v. United States?

Posted on May 30, 2019 by Lisa Heinzerling

In the first week of October, the justices heard argument in Gundy v. United States, in which a convicted sex offender argues that the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by giving the Attorney General untrammeled authority to decide whether the law's registration requirements, backed by criminal penalties, apply at all to offenders convicted before the statute was enacted. Gundy is the only case from the Court's October argument session left to be decided.

Around the time of the oral argument in Gundy, I heard several Court watchers predict that the case would be decided easily, and against Gundy, through a narrowing interpretation that would avoid any serious nondelegation issue. The government had argued that the Attorney General's discretion could be limited by finding that "the text and context" of SORNA convey an instruction to the Attorney General to "specify the applicability of SORNA's registration requirements to pre-Act offenders 'to the maximum extent he finds to be feasible.'" Such guidance from Congress would easily satisfy the Court's existing jurisprudence on nondelegation.

As time passes, however, this seemingly straightforward resolution of Gundy seems ever less probable. One problem for the government is that the limiting principle it asserted – "to the maximum extent he finds to be feasible" – does not appear in the statute. Conservative justices wedded to textualism may be hesitant to read into the statute a limitation the text does not identify.

Moreover, the justices have already passed up a chance to interpret SORNA narrowly to avoid the very challenge they now face. In 2013, in Reynolds v. United States, the Court found that SORNA's registration requirements did not apply to pre-Act offenders until the Attorney General said they did. Chief Justice Roberts, who at oral argument had asked counsel for the government whether delegating this degree of authority would create a nondelegation problem, joined Justice Breyer's majority opinion without comment. By interpreting SORNA to require action from the Attorney General before the law's registration requirements may apply to pre-Act offenders, the Court in Reynolds created the constitutional conflict it now confronts.

Another worrisome sign for the government is that four of the Court's current justices have in recent years expressed constitutional anxieties about Congress's broad delegations of power to administrative agencies. Gundy may give them the chance to revive or even expand a constitutional doctrine that has not been used to invalidate a federal statute since 1935.

If the Court invalidates SORNA as an unconstitutional delegation of legislative authority, the consequences could be gigantic. A reawakened nondelegation doctrine could run like a scythe through the scores of statutes – including, of course, environmental statutes – that grant broad authority to administrative agencies. Operating that destructive instrument would be the least politically accountable of all the branches of government.

The Court could try to limit a decision invalidating SORNA, based on such factors as the criminal context; the worrisome power of the Attorney General as both prosecutor and quasi-legislator; and the backward-looking nature of the application of registration requirements to pre-Act offenders. Even a limited invalidation, however, would mark a significant turning point in administrative law, with destabilizing consequences for federal environmental programs. The longer we wait for the Court's decision, the more likely it is that the justices are grappling with the most fundamental questions raised by this case.

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NOTE: A version of this post was published by ACSblog in September 2018.