- Joined
- Jan 24, 2013
- Messages
- 20,738
- Reaction score
- 6,290
- Location
- Sunnyvale California
- Gender
- Male
- Political Leaning
- Liberal
Last Thursday, the United States Supreme Court issued a 5-3 ruling ingundy v United States and the dissenting minority seemed in favor of reimplementing the non-delegation doctrine.
Gorsuch wrote the dissent, and it is alarming.
Neil Gorsuch and Supreme Court conservatives are ready to end American bureaucracy.
What on earth is the basis for This attack on the delegation of powers to the executive branch?
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.
Gorsuch wrote the dissent, and it is alarming.
Joined by Chief Justice John Roberts and Justice Clarence Thomas, Gorsuch provided a lengthy history lesson about the separation of powers’ protection of individual liberty and condemned the “intelligible principle” rule as a “misadventure.” He would demand much more, requiring Congress to give the executive branch vastly more guidance in enforcing statutes. It’s not actually clear what test Gorsuch would use to locate nondelegation violations, but the gist seems to be that the executive branch is mostly limited to making “factual findings.”
Gorsuch’s fuzzy new rule would work a revolution in federal law. Hundreds of statutes task the executive branch with some broad goal, then let agencies fill in the details. The Environmental Protection Agency, for instance, has wide latitude to identify and restrict pollutants, because Congress doesn’t want to legislate every new regulation. Instead, it gives the EPA certain guidelines, then leaves it to the agency’s scientists to determine what rules would best serve the public. The same goes for the Department of Labor, whose experts are empowered to identify and remedy workplace abuses. Americans may complain about bureaucracy, but with Congress perpetually deadlocked, these agencies keep the government running—and, crucially, adapting to new challenges, exactly as lawmakers intended.
Now Gorsuch wants to stop all that. His vague standard would allow judges to strike down statutes that don’t give agencies sufficient direction. What laws does he have in mind? On Thursday, he limited his critique to SORNA. But soon Kavanaugh, a critic of the administrative state, will likely join his crusade, shoring up a conservative majority. At that point, it won’t just be sex offender laws that fall, but any statute that delegates too much power to agencies in the court’s subjective view. The result could permanently hobble the executive agencies that do the everyday work of carrying out the law.
Neil Gorsuch and Supreme Court conservatives are ready to end American bureaucracy.
What on earth is the basis for This attack on the delegation of powers to the executive branch?