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The United States Law Week

Supreme Court Won’t Weigh Curbing U.S. Agency Powers

Nov. 25, 2019, 3:21 PM

The U.S. Supreme Court refused Nov. 25 to once again consider whether Congress is disregarding a long-held legal doctrine and giving too much power to federal agencies.

Last term a short-handed Supreme Court refused to reinvigorate the “non-delegation doctrine,” which prohibits lawmakers from effectively passing off their legislative authority to another branch of government. The doctrine was used to upend New Deal legislation in the 1930s, but has been dormant since.

Conservatives and libertarians eager to dismantle the so-called administrative state are eager for the court to find that Congress has violated separation of powers and to curb executive authority.

But the justices refused to take up Ronald Paul’s and Arnold Caldwell’s appeals, who each claim that Congress violated the doctrine when it delegated to the attorney general the decision of whether sex offender registry laws should apply retroactively to those who were convicted of sex crimes before the reporting requirements were enacted.

Justice Brett Kavanaugh wrote a statement respecting the denial in Paul saying that the court may want to reconsider the non-delegation doctrine in a future case.

Kavanaugh was embroiled in controversy surrounding his Senate confirmation hearings when the issue was argued at the court last term and had not yet taken his seat.

His statement suggests the issue may come back to the court in a future term.

The justices separately turned away a long-pending request to reconsider last term’s case, Gundy v. United States.

The eight-member court came to a splintered result. Although Justice Samuel Alito agreed with the result in Gundy, he said he would be “willing to reconsider the approach we have taken for the past 84 years” towards the non-delegation doctrine.

The cases are Paul v. United States, U.S., No. 17-8830, denied, 11/25/19 and Caldwell v. United States, U.S., No. 18-6852, denied, 11/25/19.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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