That Sick Chicken Will Hunt the Modern Administrative State

I have a piece for the fall issue of the American Prospect about the threat the Roberts Court poses to the administrative state. The most ominous case from the last term is Roberts’s indication that he wants to not only exhume non-delegation doctrine but to use it aggressively:

What may prove one of the most important cases of the Supreme Court’s most recent term seems innocuous on its face. In a 5-3 decision in Gundy v. United States, the Court upheld a provision of the Sex Offender Registration and Notification Act, authorizing the attorney general “to prescribe rules” concerning offenders who would have to register as a sex offender although they had not previously been required to. Under existing law, this was an easy case. As Justice Kagan wrote for a plurality of the Court, “as compared to the delegations we have upheld in the past,” the SORNA provision is “distinctly small-bore” and “falls well within constitutional bounds.” So far, so good.

But the other opinions in the case are ominous. Justice Neil Gorsuch’s dissent was joined by Chief Justice Roberts and Justice Thomas, and almost certainly would have been joined by Justice Brett Kavanaugh had he been on the Court when the case was heard. Most disturbingly, Justice Samuel Alito filed a concurrence that did not join any part of Kagan’s opinion. Alito conceded that the provision of SORNA was constitutional under existing rules and it would be “freakish” to single it out, but “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Kavanaugh’s confirmation almost certainly gives Alito the majority he seeks.

The “nondelegation” doctrine is based on the premise that Congress acts unconstitutionally when it delegates its legislative authority to the executive branch by authorizing it to make policy choices. The doctrine was invoked in two 1935 decisions—Panama Refining v. Ryan and Schechter Poultry v. U.S.—to hold the National Industrial Recovery Act unconstitutional. However, the Court quickly (and correctly) abandoned the doctrine as an unworkable dead end. As Alito observed in his concurrence, even as the administrative and regulatory state has proliferated, the Court has not struck down an act of Congress under the doctrine in the subsequent 84 years.

What’s particularly disturbing about Gundy is that (unlike with the NIRA) there is nothingremotely unusual or novel about the delegation involved. Congress made a clear policy choice and simply left it to the executive branch to use its expertise to determine how it would be best implemented. Whole branches of administrative law are authorized by delegations less specific about policy than the one at issue in that case; practically the entire Dodd-Frank Act was left to executive branch agencies to decide the technicalities of financial regulation. As Kagan put it in her opinion, “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”

Nondelegation doctrine can sound superficially attractive—having elected officials make clearer choices sounds like a good thing. But as the political scientist George Lovell observed in an article defending the abandonment of the doctrine, the idea that the judiciary can forceCongress to make clearer choices is naïve and ahistorical. Before the development of the modern regulatory state, Congress still routinely passed legislation that was accidentally or purposely vague, or simply refused to address major policy areas, allowing judges or state and local officials who are more easily captured by powerful interests to fill in the gaps.

Of course, the problem is that this is the future many conservatives want. And because if the provision of SORNA is unconstitutional most of the U.S. Code is logically unconstitutional, conservative judges will have a plausible argument against any regulatory action made by a Warren or Sanders administration that offends them.

The Court quickly abandoned nondelegation doctrine because it would be completely unworkable, and using in in a case like Gundy illustrates this. Reviving it will essentially make the Supreme Court a super-executive with no logical constraints, which given that the Senate will curtail progressive legislative goals in most circumstances (and stop Congress from modifying legislation to re-authorize executive actions as the Court plays 3-Card Monte) is exactly why the reactionary wing of the Supreme Court wants to revive it.