D.C. Circuit Review – Reviewed: Three Quick Thoughts on Gundy

by Aaron Nielson — Friday, Oct. 5, 2018@Aaron_L_Nielson

With all of the Judge Kavanaugh news,* I suspect it has been hard for many folks to get as much work done as normal — including folks on the D.C. Circuit. The Court did not decide any cases. But that doesn’t mean nothing happened in the world of admin law. To the contrary, the Supreme Court heard oral argument in Gundy v. United States, the nondelegation case. I have spent the morning listening to the audio of that argument. Here are a few quick thoughts.

(1) It is dangerous to put too much weight on oral argument, but I don’t think the Court is going to strike the law down. Justice Gorsuch — unsurprisingly — seemed open to doing so. And a few others suggested some sympathy. But my sense of the Court is that the votes aren’t there. Even Justice Ginsburg, who in the past has expressed some support for the argument, did not sound not entirely convinced.

(2) That doesn’t mean the nondelegation doctrine is dead! Recall footnote 7 of Mistretta v. United States:

As I review the argument, it looks to me like the Court is trying to find a narrowing construction to limit the Attorney General’s discretion. Indeed, Justice Sotomayor was open on this point: “Don’t we routinely read into statute limitations in order to save its constitutionality? … We do do that routinely. And we have read into delegation cases limits.” Throughout the argument, various Justices asked similar sorts of questions. Whether this is the right way to approach nondelegation issues is a tricky question. But Gundy may end up being another example of that method.

And (3), I hoped someone would have mentioned the D.C. Circuit’s approach to the question. That didn’t happen — though, to be sure, the analysis wasn’t squarely implicated.

My takeaway: Admin Law professors may want to assign the oral argument to their students. I suspect doing so will prompt a good conversation.


* As I write this post, the Senate has voted for cloture by a very thin margin. It is unclear whether Judge Kavanaugh will be confirmed.


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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

One thought on “D.C. Circuit Review – Reviewed: Three Quick Thoughts on Gundy

  1. Will Yeatman

    Scholars are noting that Gundy’s likely outcome is another form of “as applied” or “mini” nondelegation doctrine in addition to the big question or lenity exceptions to Chevron framework. In cases like Gundy, as-applied-nondelegation pertains to a direct (if perhaps ambiguous) delegation (e.g. 42 U.S.C. § 16913(d)); in Chevron cases, as-applied-nondelegation pertains to existence (or not) of an indirect delegation for interpretive policymaking (inferred from statutory context).

    I note the distinction only because it sets up a neat paradox: In the Chevron context, the agency could lose deference (i.e., lose on the nondelegation doctrine question) but win the holding on de novo review (e.g. King v Burwell). In the Gundy context, the government could win on the nondelegation question but lose the holding.


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