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Gersen writes: "We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies."

Justice Brett Kavanaugh had not yet been confirmed when the Supreme Court heard oral arguments in Gundy v. United States; his vote could have changed the outcome. (photo: Brendan Smialowski/Getty)
Justice Brett Kavanaugh had not yet been confirmed when the Supreme Court heard oral arguments in Gundy v. United States; his vote could have changed the outcome. (photo: Brendan Smialowski/Getty)

The Supreme Court Is One Vote Away From Changing How the US Is Governed

By Jeannie Suk Gersen, The New Yorker

05 July 19


ad Brett Kavanaugh not been accused of sexual assault, one of the first cases he would have heard as a Supreme Court Justice would have been that of Herman Gundy, a convicted sex offender. When nominated, last July, Kavanaugh was expected to be confirmed in time for the term that started last October. But the emergence of sexual-assault allegations against him delayed his confirmation vote until October 6th, just after the Court’s first set of oral arguments—which included Gundy’s request to invalidate his federal conviction for failure to register as a sex offender. In June, the Court denied Gundy’s petition. As it turns out, Kavanaugh’s absence from the case likely changed its outcome.

Gundy v. United States was about the Sex Offender Registration and Notification Act, known as SORNA, which Congress enacted in 2006. The statute made it a crime, punishable by ten years in prison, for individuals convicted of a sex offense involving a minor to fail to register in each state where they live, work, or study. But Congress gave the Attorney General “the authority to specify the applicability” of these requirements to people convicted before SORNA took effect. In 2007 and in 2011, Attorneys General Alberto Gonzales and Eric Holder said the requirements do apply to such people.

That group encompassed half a million people, including Gundy, who was convicted of sexual assault of a minor in 2005. After serving prison time for the crime, he went to live in a halfway house in New York in 2012. After he failed to register there, he was rearrested and convicted of the new federal crime. Gundy claimed that SORNA violated the non-delegation doctrine, wherein it is unconstitutional for Congress to delegate its legislative power to the executive branch. He argued that letting the Attorney General determine whether the law applied to people like him left too much to be decided by an agency rather than by Congress.

For the better part of a century, the Court has permitted Congress to delegate broad policymaking authority to federal agencies. The Court has not struck down a statute under the non-delegation doctrine since 1935, when a conservative majority was hostile to progressive New Deal measures aimed at protecting workers and consumers. Since then, the increasing complexity of modern industrialized society has made it obvious that—even when Congress is not as dysfunctional as it is now—it’s not possible for Congress to legislate the technical details necessary to regulate the environment, health, safety, labor, education, energy, elections, discrimination, housing, and the economy.

As a result, executive agencies create regulations and implement binding policies. That has long been understood as both necessary for the country to function and consistent with the Constitution. The Court has applied a test: if a statute gives an agency discretion that is sufficiently constrained by an “intelligible principle,” then Congress is not unconstitutionally delegating legislative power. But many conservatives complain that that test has been applied in a lax way, so that any statute delegating any scope of authority appears to satisfy it. For example, the Court has repeatedly upheld statutes that give agencies only general guidance, such as to regulate in the “public interest,” or issue air-quality standards “requisite to protect the public health.”

In Gundy, all four liberal Justices, in a plurality opinion by Justice Elena Kagan, hewed to the prevailing approach, finding that Congress provided enough guidance limiting the agency’s discretion to pass constitutional muster. Three conservative Justices, in a dissent by Justice Neil Gorsuch, said that the law impermissibly gave the Attorney General “free rein to write the rules,” and was unconstitutional. Justice Samuel Alito cast the deciding vote that enabled the liberals to prevail this time, but his three-paragraph concurrence made clear that the victory may be short-lived. He said that if the majority “were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A conservative majority was lacking here because of the absence of Justice Kavanaugh. Next time there’s a similar case before the Court, his vote will make for a different result.

We are now explicitly on notice that the Court will likely abandon its longstanding tolerance of Congress delegating broadly to agencies. What’s at stake is the potential upending of the constitutional foundations of the so-called “administrative state.” Today’s reality is that agencies, not Congress, make most federal laws. As Justice Kagan put it, if the delegation in Gundy were unconstitutional, “then most of Government is unconstitutional.”

What will happen then, when the conservative bloc prevails? The alarmist view is that the E.P.A. couldn’t have the power to decide how stringent pollution standards should be. The F.D.A. couldn’t have the authority to approve or deny applications to sell new medical drugs. The Department of Education couldn’t make rules for colleges and universities. The Department of the Interior couldn’t govern snow mobiles in national parks. The S.E.C. couldn’t regulate financial firms or securities. The F.C.C. couldn’t issue rules on net neutrality or Internet service providers. In sum, we would dwell in a world without the federal law that governs our lives.

The reason this parade of horribles is not quite right is that very few of us actually want to live in that world, and what the public, Congress, and the President all want over time, the Court is unlikely to stop. And to say that there are constitutional constraints on the scope and structure of congressional delegation to agencies is not to say that no delegation is allowed at all.

An irony of the conservative majority’s insistence on returning to the Constitution’s requirements is that non-delegation is not mentioned in the Constitution. It is a set of judicially crafted elaborations on the principles of separation of powers and good governance. Article I simply grants all “legislative powers” to Congress, Article II similarly gives the “Executive power” to the President, and the text says nothing about delegation, nor does it define legislative or executive power. The meaning of these terms, of course, has been subject to many pages of argument and judicial interpretation since.

The main idea of the non-delegation doctrine is that any law that is enforced against citizens must be approved by Congress. It’s not enough for Congress to say, “We should have a law on this subject and someone else will write and enforce it.” But this formulation is a rhetorical parlor trick. When building a house, one may have a strong idea of the kind of house one wants, but most of us have neither the knowledge nor the desire to make the thousands of key decisions about how to safely construct it. Those decisions are sensibly delegated to a contractor and an architect. A rule forbidding any delegation of that sort makes for very different, more rudimentary, building, and probably many fewer buildings built.

The more robust non-delegation doctrine that the conservative Justices desire would mean a change in the nature and scope of the federal government’s role in our lives. Conservatives favor making it difficult for the federal government to regulate, because, when it does, it risks impinging on our liberties. And, if the federal government does less, states may do more. The impact of this change will ultimately depend on which elected officials are in power, and that is really up to us, not the Supreme Court.

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