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The non-delegation doctrine and gundy v United States

Unitedwestand13

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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.


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?
 
Chester the Molester finds a friend in Neil Gorsuch.
 
What on earth is the basis for This attack on the delegation of powers to the executive branch?

You say his dissent is "alarming," but I don't think you read it, because he answered your question in his very first paragraph:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

Here's the opinion. His dissent starts on PDF page 24.

https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

Reading the dissent itself, not the Slate article panicking over his dissent, what specific problems do you have with it? You don't have to agree, but you should at least be able to cite things he wrote and articulate counter-arguments to them, or at least actual critiques of them.
 
The point being made by the dissenters is that Congress has been creating agencies and then delegating it's law-making power to the Agencies allowing them to create "regulations" with the force of law.

This means that we now have a sort of two-tiered legislative system, one being Congress who pass "laws," and the other being those Agencies under the control of the Executive Branch via the use of this delegated power to create regulations. The creation of such agencies and their regulatory powers is taught in Law School as "Administrative Law."

IMO it has always seemed to me to be a violation of the separation of powers; as Congress is supposed to pass laws and taxes, while the Executive Branch is supposed to enforce those laws and collects the taxes.

There have been many problems with this delegation over time, as people are held accountable for regulations that they don't even know exist, yet can result in heavy fines and even imprisonment. One example; the kinds of things you are not allowed to bring into the country when you return from a trip. Simple items of food, knickknacks, etc., perfectly legal where you bought them, illegal per regulatory requirements if you bring them into the country.

Yes, there are rights to hearings whenever an Agency tries to create a new regulation, and there are "advisory boards" involved. But many of those advisory boards are packed with representatives of special interest groups the Agency might be regulating. Moreover, the hearings are often pro forma, done to meet the requirements and often have no effect on the regulation the Agency intends to put into place.

IMO it has been an easy way for Congress to pass off it's Constitutional duties, allowing all this time for "politicking."
 
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You say his dissent is "alarming," but I don't think you read it, because he answered your question in his very first paragraph:



Here's the opinion. His dissent starts on PDF page 24.

https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

Reading the dissent itself, not the Slate article panicking over his dissent, what specific problems do you have with it? You don't have to agree, but you should at least be able to cite things he wrote and articulate counter-arguments to them, or at least actual critiques of them.

My problem with Gorsuch’s argument is that it undermines the ability of the federal government to function properly because most most of the work carried out by government officials (from EPA officials to labor department employees) is done under powers delegated to them.

The non delegation doctrine needs to remain dead and buried.
 
My problem with Gorsuch’s argument is that it undermines the ability of the federal government to function properly because most most of the work carried out by government officials (from EPA officials to labor department employees) is done under powers delegated to them.

His dissent doesn't have much of anything to do with that.


The non delegation doctrine needs to remain dead and buried.

I think you have a faulty understanding of what the "non-delegation doctrine" is. You seem to think it's about not allowing, say, the Attorney General to delegate work to his underlings. That's not what it is.

It's about Congress and its delegation of its own authority to members of the Executive branch, such as the Attorney General, to make law.

Legislation is Congress's place, not the Executive's. Under the non-delegation doctrine, Congress may not, constitutionally, give its legislative power to another branch, especially to an un-elected official like the Attorney General. To delegate legislative authority to the Attorney General undermines separation of powers.

Of course, that's explained in the first paragraph of Gorsuch's dissent, which I already quoted to you.

Do you think unelected officials such as the Attorney General should have broad authority to make law? Or do you think that's the place of the people's representatives in Congress?

Do you have an issue with separation of powers? If so, what, and why?

But it's clear you still haven't read the dissent itself in order to know what Gorsuch's argument is. Why not just read it and then formulate responses to it? Who knows? Maybe you'll end up agreeing with it. If not, you should be able to explain specifically why not.
 
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Congress is only deadlocked because of the self-imposed “cloture rule” in the Senate. It has become weaponized parliamentary procedure and deprives the American people of policy changes they vote for their representation to enact. I may not have agreed with the legislative agenda of Republicans in the 115th Congress, but right or wrong they secured majorities in both chambers of Congress. The “cloture rule” is undemocratic and a cancer on our Republic.


Sent from my iPhone using Tapatalk
 
I am going to delve into the meat of this (I haven't had time, yet), but I'm putting in a bookmark - my impression is that this line of reasoning is mostly an excuse. What I have found is that the current majority tends to favor such doctrines when it suits their ideological predilections, but abandons it - and actually ignores lines of cases entirely - when it doesn't. I use as examples the gerrymandering and census decisions (and dissents). I just started a separate thread on exactly that point, although a 9th Circuit decision, City of Los Angeles v. Barr. My objection (which was inexplicably truncated by internet gremlins) is exactly this inconsistency.
 
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Another bookmark: Ironically, in this particular instance, I agree with the dissent (if not exactly their analysis). The problem with non-delegation is not the concept, but how it is used. Congress, in delegating authority, must articulate a basic scheme and parameters for the delegation of authority. The problem with the statute, as noted in the dissent, is the utter lack of limitation or direction provided. The most dangerous opinion, actually, is the concurrence of Alito.
 
My problem with Gorsuch’s argument is that it undermines the ability of the federal government to function properly because most most of the work carried out by government officials (from EPA officials to labor department employees) is done under powers delegated to them.

The non delegation doctrine needs to remain dead and buried.

Actually, all work carried out by executive (you're really only referring to executive department employees) officials is done under authority (power is inaccurate as applied here) delegated to it by the Congress. The executive always has the power to carry out laws, but requires authorization from the Congress by its enactment of those laws. The federal government was structured as it is precisely because the division of governmental powers among discrete departments creates a burdensome process. Mere expediency is not sufficient justification to simply ignore the basic structure of the federal government.
 
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