John Catalfamo
90 Geo. Wash. L. Rev. 536
Recent Supreme Court jurisprudence suggests that courts may play a greater role going forward in striking statutes that provide broad grants of authority to the executive branch as violations of the nondelegation doctrine. In the area of international trade law, the Court of International Trade and Court of Appeals for the Federal Circuit recently refused to find that a trade statute was an unconstitutional delegation of legislative authority. Other equally or more delegatory statutes, however, may not be on safe constitutional footing, such as section 301 of the Trade Act of 1974, which gives the executive branch broad discretion to retaliate against unfair foreign trade practices. This Note examines the Trump Administration’s use of section 301 in its actions against China and argues that when applying Justice Gorsuch’s three-part test for the nondelegation doctrine from his dissenting opinion in Gundy v. United States, section 301 would not be able to withstand a constitutional challenge. This Note further argues that this new standard can be used as a tool to correct the current imbalance in the section 301 authority between Congress and the executive branch.
