“How much authority — how much room to make policy choices—can Congress delegate to the president and executive branch?”
So begins “The National Security Delegation Conundrum,” an analysis of the foreign relations jurisprudence of the U.S. Supreme Court, published at Just Security by Harlan Grant Cohen, Gabriel M. Wilner/UGA Foundation Professor in International Law and Faculty Co-Director of the Dean Rusk International Law Center here at the University of Georgia Law.
The focus of Cohen’s commentary is Gundy v. United States, a June 20 decision by a divided Court (4 supporting an opinion by Justice Elena Kagan and 3 an opinion by Justice Neil Gorsuch; Justice Samuel Alito concurred in the judgment). It declined to revive the nondelegation doctrine — but did so, Professor Cohen points out, in a way that raised further questions on how that doctrine applies to cases involving national security.
Instances in which these questions might be relevant have occurred frequently in the last couple years, Cohen wrote, on issues as varied as migration of peoples and trade in auto parts. After analyzing the issues at hand, Cohen concluded that Gundy did little to resolve them:
“What is clear though is that until a test or principle is found, the national security delegation conundrum will remain.”
The full Just Security analysis is here.