nondelegation doctrine, major questions doctrine, Justice Kavanaugh, Gundy v. United States, Sex Offender Registration and Notification Act (SORNA), Paul v. United States, Chevron deference, intelligible principle approach
The Supreme Court has many tools at its disposal to address improper delegations of legislative power by Congress to the executive branch. Two of these tools are the nondelegation doctrine and the major questions doctrine. The nondelegation doctrine is a sledgehammer. Able to declare entire statutory provisions unconstitutional, its ability to do a lot of damage is perhaps the reason the Court never uses it. Indeed, the Court has only used it twice, both times in 1935. Although it’s old and rusty, the Court continues to keep it in the toolbox just in case. Since 1935, the Court has been using other, seemingly less destructive tools to do similar work. As recently pointed out by Justices Gorsuch and Kavanaugh, the modern major questions doctrine is one of these tools. There are, of course, others in the toolbox.
Clinton T. Summers,
Nondelegation of Major Questions,
74 Ark. L. Rev.
Available at: https://scholarworks.uark.edu/alr/vol74/iss1/3