DECEMBER 18, 2019
The Supreme Court’s recent decisions in Gundy v. United States and Paul v. United States (or, more precisely, Justice Gorsuch’s dissent in Gundy and Justice Kavanaugh’s “statement” in connection with the denial of certiorari in Paul) has triggered a panic among the liberal community that, in the words of one commentator, the Supreme Court is about “to slash agencies’ regulatory power,” “toss out decades of settled law regarding the power of agencies to regulate,” etc. The cause of this panic is that the five conservative justices have all signaled a willingness to reexamine the “nondelegation” doctrine, which is legal-speak for the principle that Congress cannot “delegate” its legislative responsibilities. Since almost all of the modern regulatory state is based on Congress giving agencies the power to regulate, for 85 years the Court has uniformly upheld broad grants of such authority because Congress had provided “an intelligible principle” to guide the agency’s rulemaking, and by which courts can judge whether the agency’s action is within the scope of its authority.
There is no point debating the magnitude of this “threat.” When the Court takes the appropriate case, we will see what these justices have to say. But I think it is important to point out two things: First, while liberals are concerned because Congress frequently delegates in order to give agencies the flexibility to respond to changing circumstances (a good thing), much of the delegation results from Congress’s lack of time and resources to get into the nitty-gritty (a bad thing), from political gridlock (ditto), and from wanting credit for enacting the law (think Clean Air Act)—but passing the buck and avoiding blame for any particular regulation (also a bad thing). Second, when Congress does not have the time or resources to get into the details—or can’t reach agreement on the particulars, or wants someone else to take the heat for the implementing regulations—it throws up its hands about what it wants to achieve and how to achieve it, in effect saying “leave it to the agency and the courts to decide all that.” Any of these bad causes results in situations everyone should be worried about.
Take Gundy, which dealt with the federal sex-offender registry (SORNA). After deciding how to apply it to future offenders, Congress left it to the Attorney General as to how it should apply to previously-convicted offenders. (This is why this was not a “delegate to give flexibility to adapt to changing circumstances” situation, because nothing would be changing about previously-convicted offenders.) As Justice Gorsuch pointed out in his dissent, Congress made it a felony (punishable by up to ten years in prison) for those offenders to fail to register in accordance with the Attorney General’s regulations, and:
[f]or six months after SORNA’s enactment, Attorney General Gonzales left past offenders alone. Then the pendulum swung the other direction when the Department of Justice issued an interim rule requiring pre-Act offenders to follow all the same rules as post-Act offenders. A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders. Three years after that, Attorney General Holder required the States to register only those pre-Act offenders convicted of a new felony after SORNA’s enactment. Various Attorneys General have also taken different positions on whether pre-Act offenders might be entitled to credit for time spent in the community before SORNA was enacted.
In other words, it was quite possible that someone could get 10 years in prison for something that had been legal under a previous Attorney General and was to be legal again under the next one–or legal again under the current one if he were to change his mind the following week. Hands up if you think it is a good idea for Bill Barr’s Justice Department to have the authority to decide what is and is not a felony.
The second thing worth noting is that the nondelegation doctrine is the basis for ongoing litigation against some of the Trump Administration’s worst impulses. For example, in Center for Biological Diversity v. McAleenan, plaintiff environmental organizations sued (unsuccessfully) the Department of Homeland Security after DHS exercised its authority under the Illegal Immigration Reform and Immigrant Responsibility Act and subsequent statutes, which gave DHS the power to waive not only the environmental laws at issue in that case, but all applicable federal laws, whenever DHS deems it necessary to get border walls built. (And, at the same time, Congress limited federal court jurisdiction to review those waivers.)
Apropos of border walls, the nondelegation doctrine is also a central feature in El Paso County v. Trump, where plaintiffs are challenging the President’s hysterical proclamation that there is a National Emergency at the southern border because of drug smuggling and illegal immigrants. (Full disclosure:I am part of the legal team representing El Paso County and the Border Network for Human Rights in that case.) We’re arguing that the National Emergencies Act (NEA) violates the nondelegation doctrine because the “NEA does not define ‘emergency’ or expressly specify any ‘intelligible principle’ to guide the President’s ‘emergency’ determination.” This allows the President to proclaim anything he wants to be an “emergency” and invoke special powers under more than 100 other federal laws, which in this case included pilfering billions of dollars that Congress expressly appropriated for other purposes.*
We should all be concerned about what the Court will do with the nondelegation doctrine. But it is more important to understand that much of the vast regulatory authority that Congress routinely delegates to agencies results from problems with how Congress operates, and that there are instances of delegation that, regardless of political affiliation, we should all be worried about.
*The district court did not rule on this issue, instead holding that the 2019 Consolidated Appropriations Act barred the President from using the pilfered funds, and subsequently enjoining their use for border wall construction.