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One of the core principles of the US Constitution is separation of powers, the belief that ambition must be counteracted with ambition so that too much authority is not concentrated in the hands of a few. This includes the principle of non-delegation that the powers held by one branch of government must not be given to another, even when done voluntarily. Gundy presents the question of whether Congress gave away too much authority to the Department of Justice to determine who is put on the federal sex offender registry. Does this violate the principle that those who make the laws (Congress) must not also be those who prosecute the offenders (DOJ)? Have those functions been combined in a way that will lead to abuse? Gundy applies to sex offenders, but the principle of non-delegation has become an important question that will influence many future decisions of the Court.
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See Gary Lawson and Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (Lawrence, KS: University Press of Kansas, 2017), pages 118–122.
Act of July 22, 1790, ch. XXXIII, § 1, 1 Stat. 137.
Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825).
See United States v. L. Cohen Grocery Store Co., 255 U.S. 81 (1921).
See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920).
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), at 541.
See National Broadcasting Co. v. United States, 319 U.S. 190 (1943); Yakus v. United States, 321 U.S. 414 (1944); American Power & Light Co. v. SEC, 329 U.S. 90 (1946).
Mistretta v. United States, 488 U.S. 361 (1989), at 416 (Scalia dissent).
Justice Scalia dissented on a technical ground involving the particular agency at issue, but he agreed fully with the majority’s general approach to delegation questions.
Mistretta, 488 U.S. at 372.
James Landis, The Administrative Process (New Haven, CT: Yale University Press, 1938), page 2.
34 U.S.C. § 20913(d) (2012).
Gundy plurality, page 1.
Ibid., page 17.
Gundy Alito concurrence, page 1.
Gundy Gorsuch dissent, pages 26–27.
- Gundy v. U.S. on Delegation of Power
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