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Nondelegation v. Equal Protection: How Emotional Resonance Guides the Court’s Attention

Matthew Lambertson
Summer Law Clerk

July 7, 2023

Not all constitutional violations invite the same degree of condemnation from the bench. Some cases have the benefit not only of a sympathetic party and fact pattern but of an emotionally appealing constitutional issue, which the justices of the Supreme Court are eager to address. Other cases, by contrast, raise issues that are no less important to the rule of law, in that they address equally, if not more egregious violations of the Constitution, but lack the same emotional resonance.

This divide is exemplified by the Court’s recent decision in Haaland v. Brackeen. In upholding the Indian Child Welfare Act (ICWA) against various constitutional challenges, the Court did not reach the merits regarding two of those challenges, which it found the petitioners lacked standing to raise—challenges under the nondelegation doctrine and the Equal Protection Clause, respectively.

Justice Kavanaugh, however, penned a short concurrence emphasizing the “serious” nature of the equal protection challenge, explaining that under ICWA, a court may deny a child a foster care or adoption placement, even if it is in the child’s best interest, because of that child’s or a prospective parent’s race. This, he writes, “raise[s] significant questions under bedrock equal protection principles . . . .” Kavanaugh concludes by identifying what sort of party—a prospective parent or child involved in foster care or adoption proceedings—would have standing to raise an equal protection challenge to ICWA.

Kavanaugh’s apparent desire to hear a case affording him and his colleagues an opportunity to rectify an egregious equal protection violation is admirable, though his concurrence is telling. Namely, Kavanaugh spends no time underscoring the severity of the other constitutional issue not addressed by the Court—the nondelegation doctrine.

Compare Justice Kavanaugh’s rhetoric in this case with his statement in Paul v. United States respecting the Court’s denial of certiorari. In Paul, Justice Kavanaugh alluded to Justice Gorsuch’s “thoughtful” dissenting opinion in Gundy v. United States discussing the unconstitutionality of Congress’s divestment of legislative power to the Attorney General under the Sex Offender Registration and Notification ACT (SORNA). Far from expressing outrage over the Court’s current delegation jurisprudence, Justice Kavanaugh merely suggested that Justice Gorsuch “raised important points that may warrant further consideration in future cases.”

This difference in tone in Justice Kavanaugh’s writings epitomizes the fact that, for many, challenges to Congressional divestments of legislative power to the executive branch are not nearly as emotionally resonant as, and are therefore less pressing than, challenges to laws denying equal protection to certain racial groups. This divide is by no means confined to Justice Kavanaugh.

In Brackeen, no justice—save for Justice Barrett when she, writing for the Court, addresses the petitioners’ lack of standing—devotes any space to criticizing the nondelegation violations inherent to § 1915(c) of ICWA, which authorizes Indian tribes to reorder Congress’s placement preferences in adoption and foster care proceedings. Courts and agencies must then enforce these new preferences “so long as the placement is the least restrictive setting appropriate to the particular needs of the child.”

This blatant divestment of legislative power, which the New Civil Liberties Alliance denounced as unconstitutional in its amicus brief in support of petitioners, demands the Court’s attention. Thus far, however, the Court has been unwilling to revive the nondelegation doctrine, in part because the issue lacks sufficient emotional resonance.

With the Court’s increased reliance on the major questions doctrine, the nondelegation doctrine may remain on the back burner. In the meantime, more emotionally appealing fact patterns may help compensate for the perceived dryness of this issue and may encourage the Court to appraise its true severity.