This morning, Justice Kavanaugh issued a statement respecting the denial of cert in Paul v. United States. He praised Justice Gorsuch's "scholarly analysis of the Constitution's nondelegation doctrine" from Gundy. Kavanaugh observed that the nondelegation doctrine "may warrant further consideration in future cases."
Kavanaugh carefully and concisely describes the relationship between the nondelegation doctrine and the major questions doctrine. He writes:
JUSTICE GORSUCH's opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 685–686 (1980) (Rehnquist, J., concurring in judgment). In that case, Justice Rehnquist opined that major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.
In the wake of Justice Rehnquist's opinion, the Court has not adopted a nondelegation principle for major questions.
In Gridlock, I explained that the major question doctrine is something of an offshoot of the nondelegation doctrine. The Court need not revisit Schechter Poultry altogether. Rather, the Court's post-New Deal jurisprudence simply does not apply to so-called major questions. Kavanaugh explains:
This is HUGE and as soon as a lawfag shows up we can find out why....