Justice Alito just wrote the most terrifying sentence to appear in a Supreme Court opinion in years

On the surface, Gundy v. United States is a victory for a vibrant government and the democratic constitutional order that’s prevailed in the United States for many decades. In it, a narrow majority of the court rejects an aggressive legal challenge that could render much of the executive branch of government unconstitutional.

Scratch just one inch below the surface, however, and Gundy is the harbinger of an anti-government revolution. Though the Supreme Court voted 5-3 to maintain the power of Congress to delegate the details of policymaking to executive branch agencies, Justice Samuel Alito’s vote with the majority rests on the thinnest of reeds — and he is quite explicit that he is eager to join the revolution in a future case.

The outcome in Gundy almost certainly hinges on the fact that the court’s newest member, Justice Brett Kavanaugh, was days before his confirmation vote when Gundy was argued, so he sat this case out and denied his fellow conservatives the fifth vote they needed to light much of the federal government on fire. But he won’t be absent in the next case, or the one after that, or the one after that.

The revolution is coming, and it is likely to take with it much of the regulatory structure that protects workers, patients, victims of discrimination, and the environment.

“Non-Delegation”

The specific issue in Gundy involves the Sex Offender Registration and Notification Act (SORNA), a 2006 federal law requiring certain sex offenders to register in the state where they reside. SORNA automatically imposes this registration requirement on sex offenders convicted after it was enacted, but it delegates to the attorney general the task of determining whether people who offended before SORNA became law must register.

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Gundy asks whether this regime violates a largely defunct doctrine known as “non-delegation,” which limits Congress’ ability to delegate authority to the executive branch. Under the Constitution, Congress possesses the “legislative power,” and that means that it gets to set the nation’s broad policies. The non-delegation doctrine suggests that if Congress delegates too much of this policy-setting power, it violates the Constitution.

As a practical matter, however, the courts have never wielded non-delegation to impose serious limits on Congress’ power to delegate — absent a pair of cases that struck down uniquely broad delegations of power during the New Deal. The Constitution itself, moreover, offers no real textual guidance on where court should draw the line.

Accordingly, the Supreme Court recognized nearly a century ago that a delegation of power from the legislature to the executive is permissible so long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

Justice Elena Kagan’s opinion on behalf of herself and the three other liberal justices is a fairly routine application of this venerable principle. SORNA, she notes, explicitly states that it is supposed to create a “comprehensive” system of registration for sex offenders. The delegation of power to the attorney general does not let him or her decide as a matter of arbitrary policymaking which sex offenders should register. Rather, it simply was a recognition of the fact that there may be practical difficulties involved with tracking down and registering past offenders. So the attorney general had discretion to delay implementation of SORNA for these offenders while these difficulties are worked out.

As Kagan characterizes the law, this is routine, basic stuff. Congress laid out a broad policy goal — a “comprehensive” registration scheme — then delegated to an executive agency the task of figuring out how to implement that scheme.

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Meanwhile, Justice Neil Gorsuch wrote a dissenting opinion that treats SORNA as little more than a McGuffin to advance what former Trump adviser Stephen Bannon described as “deconstruction of the administrative state.” Ominously, Gorsuch’s opinion was joined not only by Justice Clarence Thomas, whose disdain for agency regulation is well-known, but also by Chief Justice John Roberts.

The revolutionaries

Gorsuch labels the 91-year-old “intelligible principle” standard a “misadventure.” He then calls for the courts to become far more active in dismantling laws that delegate power to the executive.

It’s unclear with what, exactly, Gorsuch would replace this longstanding rule — his opinion makes vague statements that Congress “may authorize another branch to ‘fill up the details.’” But it’s clear from Gorsuch’s opinion that he believes that the courts should have a far more robust power to toss out rules it does not like.

Again, the Constitution offers virtually no textual guidance whatsoever regarding how much delegation is too much delegation. It gives Congress the “Legislative” power and the president the “Executive” power, but does not define those terms. One major reason why courts have historically been deferential to the other two branches on questions of delegation is modesty.

In an democratic system of government, where legal texts offer little guidance to unelected judges, it is better for those judges to let the elected branches drive the ship. The alternative is a world where judges make rules largely based on their own policy preferences.

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There was a time when conservatives respected the fact that judicial modesty is the soul of a democracy. The late Justice Antonin Scalia, for example, spent much of his career as one of the Supreme Court’s greatest defenders of judicial deference to agencies — in large part because he respected the fact that the one unelected branch should not seize power from the two democratically elected ones.

But Gorsuch is not Scalia, and modesty is out of fashion in Federalist Society circles. We do not yet know how sweeping the revolution will be when Gorsuch’s views become the opinion of the Supreme Court, but the upshot will be that five Republican men will gain a veto power over any agency regulation.

Two more points need to be made about Gundy. The first is that there is a reason why the previous paragraph speaks of “when” the revolution occurs, and not “if.” That’s because the fifth vote to maintain SORNA’s basic structure came from Justice Samuel Alito. His opinion concurring in the result is just three paragraphs long, and it contains this portentous sentence: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Alito, in other words, appears quite eager to join Gorsuch’s revolution. He chose not to use this case as the vehicle for revolution because if “a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” But it is overwhelmingly likely that the only reason there wasn’t a majority in support of revolution is because Kavanaugh did not hear this case. When the next case arrives, Alito will almost certainly be on Gorsuch’s team.

The final point is that, in case there is any doubt, Congress’ power to delegate regulatory authority to agencies is a backbone of American law. Environmental statutes give the Environmental Protection Agency the power to determine which technologies will best achieve Congress’ goal of cleaning the air. Health laws let the Secretary of Health and Human Services determine who is protected from discrimination by their health providers. Labor laws let agency leaders determine who receives overtime pay.

There are more examples of this kind of delegation than any lawyer or any government official is aware of. The Republican Supreme Court is about to give itself a veto power of every example of such delegation. In some cases, they may invalidate entire statutory schemes because Congress relied too heavily on delegation.

Had Congress known that the Supreme Court would pull this rug out from under it, it may have written some of these laws differently. It may not have structured the entire Clean Air Act to depend on the EPA’s judgments about things like the cost effectiveness of green technology.

But Congress acted on the assumption that the Supreme Court would not someday be held by nihilist revolutionaries. And now our entire system of law will suffer for that assumption.


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