The legislative brach has the authority to delegate some powers to the executive brach. However, there are debates about how extensive this authority is. Grundy is an example of this debate in action.

Gundy v. United States

588 U.S. __ (2019).

Grundy was convicted at trial court and appealed.


Did Congress make an impermissible delegation when it told the Attorney General to apply SORNA to pre-Act offenders?


Congress must not give permanent authority to the executive.


The SORNA was not an impermissible delegation. Affirmed.


The Sex Offender Registration and Notification Act (SORNA) required sex offenders of varies types to be registered or face a criminal charge. This act extended to sex offenders who were convicted before the Act was passed. The Act then required the Attorney General to enforce the registry as soon as feasible against those who were convicted before the Act was passed.

Grundy was sex offender before the Act passed. He failed to register after the Act was passed and was charged and convicted with failure to register. Here, he argues that Congress impermissibly delegated the authority to execute the Act to the Attorney General.


The majority argues that the statute is constitutional because the Attorney General’s authority was limited. Quite simply, the AG was instructed to implement the Act as soon as was feasible. In other words, there was a deadline for the AG to Act. Otherwise, the delegation would have been improper.

Interestingly, Alito wrote the concurrence. Although the Constitution restricts the ability to delegate, the Courts have long rejected the non delegation argument. As such, for nearly 85 years, the Courts have allowed Congress to delegate responsibilities to other branches to carry out parts of their laws. Interestingly, Alito’s concurrence is simply saying, “I agree with whichever side becomes the majority.”

However, the dissent argues that the time to revert back to the original meaning of the Constitution is now. The expansion of this delegating authority occurred during the second wave of the New Deal. Because the Constitution has no basis for this type of delegation (giving an executive brach the ability to legislate), it should not be permitted (regardless of the kind of people it affects). Consequently, the dissent would issue a three part test to determine what is allowed to be delegated. First, Congress has policy power and the executive can fill in the details. Second, Congress can make the rules while the executive focuses on fact-finding application. Finally, Congress can delegate some non legislative responsibilities, especially when constitutional powers overlap the branches of government.

Additional Notes

The non-delegation doctrine is the idea that Congress should not delegate to the Executive branch powers that are normally reserved to legislation making.

However, with the passing of the New Deal, many delegations were upheld. To have a valid delegation, Congress had to provide an “intelligible principle” to define the purpose of the delegation. See Chevron.

Once again, things changed. The courts started limiting the ability to delegate. Even though the delegation was valid in Gundy, it was limited. Gundy was limited by a deadline when the authority would expire, and there was an intelligible principle (within the scope of the Attorney General’s power). However, the dissent argued that the intelligible principle was a cop out (always passes muster so the limitation is useless). Therefore, the dissent argues that there should be additional requirements to show that the delegation is appropriate.

West Virginia v. E.P.A.


Does the EPA have the authority to regulate certain “generation shifting” approaches to carbon emissions?


The EPA must be given express authority from Congress when the situation is a major question. A major question occurs in extreme circumstances when the agency is acting outside the realm of Congressional approval


Here, the EPA is not authorized to utilize the generation shifting approach.


In an effort to minimize carbon emissions, the EPA had authority under the Clean Air Act to regulate certain emissions through different means. However, the EPA had adopted a method of regulating emissions that was not expressly approved by Congress. As such, West Virginia challenged the practice saying that it went beyond the scope of the agency.


Previously, Chevron gave agencies large amounts of discretion when utilizing regulating means. Quite simply, agencies were mini legislative bodies to help implement laws Congress had passed. Although this case does not mention Chevron, it seems inconsistent with the holding. Here, agencies are going to be limited every time a major question is presented. In those situations, agencies are required to have express congressional approval for regulating in ways that would present a major question.

Major questions appear in extreme or extraordinary circumstances. Thus, there is a two part analysis. First, is the agency acting in a way that is extraordinary (way beyond previous practice)? Second, does the agency have Congressional approval to behave in such manner? If the answer to the first is “yes” and the second is “no,” the agency is limited by the Major Questions Doctrine. The concurrence establishes more definite factors for the court to consider when determining whether this is a major question. However, the dissent argues that a major question doctrine should be avoided. Further, they argue that this case could have been resolved without addressing the major questions doctrine because the agency could have been denied simply by conducting a statutory analysis.

Additional Notes

There are pros and cons to having agencies. On the positive side, agencies have individuals who are experts and can make adjustments that the legislature would not know. As a counterargument, agencies are appointed and therefore have bias leaning towards their appointee. Additionally, agencies are not elected and therefore the people have limited remedy if they do not like what the agencies cover.

The current trend is to restrict the use of agencies. Consequently, we are slowly moving back towards the non delegation doctrine.

Ultimately, there are three main approaches to agencies:

  1. Support the agency (Chevron is alive and you should defer to the agency)
  2. Balance – agencies should not touch major questions (Chevron is dead)
  3. Agencies are unconstitutional

Legislative Veto

INS v. Chadha

462 U.S. 919 (1983).

Chadha challenges the order of deportation from Congress.


Is the legislative veto under the related deportation statute unconstitutional?


A legislative act that is not subject to bicameralism or presentment to the President is not authorized under the Constitution.


The legislative veto is not authorized, Congress’s act is unconstitutional.


Chadha had overstayed his visa and was ready to be deported. However, the Attorney General intervened and stopped the deportation. The House of Representatives again intervened, vetoing the Attorney General’s actions and ordered that Chadha and 5 others need to be deported. At this point, the immigration judge ordered the deportation pursuant to Congress’s action. Thus, Chadha challenged the order.


The majority take a very formalistic approach. First, the veto taken by Congress was a legislative act. This is because the order altered the status of the President, the Attorney General, and Chadha himself. Consequently, the legislative act would be subject to bicameralism and presentment. Bicameralism is the process that the action needs to be approved by both chambers of Congress. Afterwards, the action would then need to be presented to and approved by the President. The statute in question allowed only one chamber of Congress to override the authority that was previously delegated to the executive. Consequently, the veto is unconstitutional.

The concurrence simply argues that the ability for Congress to act as a judicial power, to overturn orders of other branches of government, is an unchecked power that must not be allowed.

However, the dissent argues that the action taken by the majority would have disastrous effects. There are over 200 pieces of legislation that would therefore be invalidated (where Congress delegated to the executive but retained a veto). Additionally, the dissent argues that the functions of bicameralism and presentment have already been done when the original statute was passed (all parties including the House, Senate, and President agreed to the veto).

Additional Notes

Delegation with strings (legislative veto).

Congress delegating power to the Attorney General to stop a deportation. The string says that “whatever is decided by the Attorney General can be overturned by one of the houses of Congress. In other words, Congress is reserving the authority to alter the decision. Is this constitutional? Here, the court says no. Why? Both houses need to be involved then present the law to the President. (bicameralism and presentment). If one house has the ability to overturn, then lawmaking does not work.

This majority opinion is very textual/formalist reading of the constitution. Strict.

However, the dissent argues that a legislative veto is necessary, especially since there are over 200 laws that are already in existence with legislative vetos. Ultimately, invalidating the law makes government much harder to manage. He likes the idea of keeping a string.

This dissent is a very functional reading of the constitution. Flexible.

As for the 200 invalidated law, the dissent’s concern did not really occur. For example, Agencies and Congress started working together anyways.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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