This week, the Supreme Court indicated that it may be on the verge of, for the first time in eight decades, applying the nondelegation doctrine and requiring Congress, not government bureaucrats, to make law.  This critical development could result in significant advancement of economic freedom, political accountability, and the liberty of individual citizens.

In Gundy v. United States, there was no majority opinion.  Instead, five justices for different reasons, barely upheld part of the Sex Offender Registration and Notification Act.  The Act delegates broad responsibility to the Attorney General to determine its application to certain criminal convicts.  Gundy challenged the law on the grounds that it violates the “nondelegation doctrine.” The doctrine holds that the Constitution imbues only Congress with the ability to make law and that it cannot pass this power to anyone else.  For the past 85 years, the Court has largely ignored the doctrine and allowed Congress to instead delegate legislative power to Executive Branch officials and administrative agencies.  In that time, the Court has always upheld these delegations, reasoning that as long as Congress gives agencies an “intelligible principle” with which to work, then Congress fulfilled its legislative duties.  See J. W. Hampton Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

This has been, in part, the reason that the administrative state has ballooned to untold proportions.  Rather than taking the responsibility on itself to govern and make laws, Congress instead passes it along to the faceless bureaucracy.   These agencies, which have scant political accountability, are then free to make “laws,”[1] both criminal and civil, that directly impact every American.  Legislators get to claim credit for passing a law if the regulation has a good outcome—but can shift any blame if it hurts people, hiding behind the bureaucrats.  This is a complete abdication of Congress’ responsibilities and accountability, and it is not what the Constitution intended.

In today’s case, five justices voted to uphold the law, but only four joined the plurality opinion.  The fifth, Justice Alito, indicated he would consider abandoning the Court’s approach and begin more strictly implementing the nondelegation doctrine, possibly striking down this law.  But because the majority could not agree to do so, he would not treat this statute differently than any other.  A three-justice dissent, led by Justice Gorsuch, indicated it would have applied the nondelegation doctrine and struck down the law.  The dissent argues that “by directing that legislating be done only by elected representatives in a public process, the Constitution sought to ensure that the lines of accountability would be clear: The sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow.”   Justice Kavanaugh, who was seated after the case was argued, was recused from the case.  Given Justice Kavanaugh’s past writings on the administrative state, it is reasonable to surmise he would have joined the dissenters, creating a majority along with Justice Alito and revived the nondelegation doctrine.

While Gundy only dealt with a criminal statute, the dissent signals a critical development in the furtherance of administrative law.  It appears at least four justices are interested in applying the nondelegation doctrine again—and a fifth is likely to join them.  If they do so, they will shift the onus of making law back to Congress and away from the administrative state.  Lawmakers would finally have to personally sign their name to new laws, and the people would be able to hold them accountable at the ballot box.  And the more onerous process of legislating through Congress would slow down and limit the influx of new rules and regulations.

It remains to be seen how far the Court will go—especially when faced with an administrative law case—but the dissent signals a big shift.  Friends of the original intent of the Constitution and opponents of administrative expansion may be disappointed by the outcome today, but they should be encouraged at the prospects to come.

Eric Bolinder is counsel at Cause of Action Institute, which filed an amicus brief in the case.

[1] Agencies, of course, do not call them laws but instead refer to them as rules, regulations, or interpretations.