Gundy v. United States

1. Justice Gorsuch in dissent asserts that a revived non-delegation doctrine would not cripple Congress' ability to govern in a flexible way. Do you agree? What about statutes on the books already that were written in reliance on the loose "intelligible principle" theory that has dominated the past 75 years. Do you have a sense as to how many of those statutes would be vulnerable under a revitalized non-delegation doctrine. 

2. Your professor believes Justice Gorsuch's dissent may come to be the law within a few years and that the non-delegation doctrine will assume much greater importance. The change in the composition of the court underlies this prediction. Justice Kavanaugh sat this one out as he was not on the court when the case was argued.  He did, however, later issue a "Statement" concerning a denial of certiorari in Paul v. United States (p. 17).  There he wrote: "I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that the Court resolved last Term in Gundy v. United States, 588 U. S. ___ (2019). I write separately because JUSTICE GORSUCH’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases. JUSTICE GORSUCH’s opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 685–686 (1980) (Rehnquist, J., concurring in judgment). In that case, Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch." Justice Coney Barrett has replaced Justice Ginsburg who formed part of the plurality in Gundy. I am not aware of her views on the non-delegation doctrine, but generally her views are more closely aligned with Justices Alito, Gorsuch and Roberts than with Justices Kagan, Sotomayor and Breyer.

3. Justice Gorsuch notes that different Attorney Generals have given different retroactive effect to SORNA's registration requirement. He believes this fact buttresses his argument that the statute in fact delegates excessive power to the Executive branch. What do you make of this argument? What is Justice Kagan's response for the plurality?