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More on the Coming War on the Regulatory State

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There has been a lot of good stuff written about the threat posed by John Roberts joining Gorsuch’s radical dissent in Gundy, alongside Alito’s concurrence suggesting that resurrecting the nondelegation doctrine was worth doing only if it went well beyond the facts on any individual case (which, as soon as a case arrives in which Kavanaugh can participate, it almost certainly will.) First, Mark Joseph Stern explains why based on the doctrinal approach the Court has taken since 1935, Gundy was an easy case:

Herman Gundy challenged that provision as a violation of the “nondelegation doctrine,” the principle that Congress can’t shift too much legislative power to another branch of government. SCOTUS has deployed this principle only twice in history to knock down federal statutes, both times in 1935 to rein in the New Deal. Today, it’s more or less moribund, because it only requires Congress to lay out an “intelligible principle” to guide an agency’s exercise of authority. Gundy claimed that SORNA’s retroactivity provision flunks that test.

In a plurality decision, Justice Elena Kagan, joined by the other liberals, rejected his argument. Kagan pointed out that SORNA’s text requires the establishment of “a comprehensive national system for the registration of [sex] offenders” that “includes offenders who committed their offenses before the Act became law.” By its own terms, it encompasses any “individual who was convicted of a sex offense”—not just offenders going forward, but everybody up to that point too. “Reasonably read,” then, “the Attorney General’s role … was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so.” And that he did: 217 days, to be precise, after SORNA’s enactment, Attorney General Alberto R. Gonzales applied the law retroactively.

Kagan, then, found the “intelligible principle” required by the nondelegation doctrine: Congress declared that it wanted SORNA applied retroactively when the attorney general decided it would be practicable. “That delegation,” she wrote, “easily passes constitutional muster.” And, she pointed out, “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

Congress made a clear policy choice (a bad one in this case, as it happens, but Congress does not exceed its constitutional authority by making a bad policy choice per se) here and relied on the expertise of the executive branch for carrying it out. This is how the modern regulatory state works. Indeed, delegation often involves less precise policy choices than Congress made in SORNA. To abandon the “intelligible principle” rule based on these facts would wreak havoc on the regulatory state.

Nick Bagley has more about why this will be a disaster:

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else.

Nothing in the Constitution requires that result. The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

That argument, however, may not carry the day. And make no mistake: If the law in Gundy is unconstitutional, then as Justice Kagan wrote, “most of government is unconstitutional.” Alarmingly, a majority of justices on the Supreme Court may not have a problem with that.

The Court’s post-1935 cases treating Schechter Poultry and Panama Refining as reactionary anomalies that should effectively be ignored are sound. The idea that judicial application of the nondelegation doctrine would result in greater accountability or better policymaking is based on an incredibly crude and unsophisticated view of how the policymaking process works. As with other neoconfederate doctrines, the revival of nondelegation doctrine will simply result in executive decisions (generally conservative) federal judges don’t like being randomly thrown out and bringing chaos to the regulatory process without improving the legislative process at all. But this makes sense for reactionary judges — hamstringing the federal government is the point.

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