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U.S. Supreme Court,
Government,
Constitutional Law

Jun. 21, 2019

Supreme Court’s nondelegation ruling settled nothing

On the morning of September 28 last year, Sen. Jeff Flake announced he would be voting to confirm Brett Kavanaugh. A few hours (and one eventful elevator ride) later, Flake changed his mind and declared his support for a one-week FBI investigation. Gundy was argued four days later — without Kavanaugh.

Sen. Jeff Flake (R-Ariz.), center, in Washington on Sept. 28, 2018. Flake's declaring his support for an FBI investigation effectively delayed Brett Kavanaugh's confirmation long enough so that Kavanaugh was unable to participate in the Gundy decision. (New York Times News Service)

Gundy v. United States, 2019 DJDAR (U.S. June 20, 2019), had the potential to be a sea change in the U.S. Supreme Court's approach to policing the separation of powers between the legislative and executive branches. Instead, through a combination of fate and one surprising "defection," an eight-justice court produced only a plurality opinion and settled nothing. But...

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