We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies. For decades, the Court permitted Congress to delegate broad policymaking authority to federal agencies, because it’s not possible for Congress to legislate the technical details necessary to regulate the environment, health, safety, labor, education, energy, elections, discrimination, housing, and the economy.The Court has not struck down a statute under the non-delegation doctrine since 1935, because it understood that this is both necessary for the country to function and consistent with the Constitution.As Justice Kagan put it, if the delegation in Gundy were unconstitutional, “then most of Government is unconstitutional.” Conservatives complain that that test has been applied in a lax way.'
At www.newyorker.com
