The Constitution gives Congress the power to make laws, but not to delegate that power to the Executive Branch. Doing so allows unelected, unaccountable bureaucrats to make rules in violation of the Non-Delegation doctrine. In Gundy, the U.S. Supreme Court will review whether Congress violated the Non-Delegation doctrine by empowering the Attorney General to unilaterally make law. PLF’s supporting brief urges the Court to revive the Non-Delegation doctrine, so Congress can no longer dodge accountability by sloughing off its lawmaking responsibilities.
In the U.S. Constitution the People gave Congress, and only Congress, the power to make new laws. According, Congress cannot give this power away to Executive Branch agencies or anyone else. This is called the Non-Delegation doctrine.
This was intentional. The Framers recognized that only people who are accountable to the People should make laws. Otherwise, unelected, unaccountable bureaucrats wind up making rules that impact all Americans.
The Gundy case stems from the federal Sex Offender Registration and Notification Act (SORNA). Congress enacted SORNA, but instead of doing the constitutionally required heavy lifting, Congress punted and empowered the U.S. Attorney General to decide—without any guidance—whether to apply the law retroactively to offenders convicted prior to the Act.
In Gundy, the U.S. Supreme Court will decide whether Congress violated the Non-Delegation doctrine by empowering the Attorney General to unilaterally make law.
The High Court has not struck down a law for violating the Non-Delegation doctrine since 1935. As a result, lawmakers in Congress have increasingly unconstitutionally punted their lawmaking duties to government bureaucrats who then hammer out the details. The result has been the rise of a class of unelected lawmakers enacting an explosion of thousands of overreaching rules and regulations on the American People to the detriment of individual liberty.
One prime example of this dynamic is the Endangered Species Act. Congress passed an arguably good intentioned law, but unconstitutionally left the law’s particulars up to politically driven environmental-oriented agencies to make up the rules as they go. As a result, agencies use arbitrary, overbroad definitions of critical habitat and sub-species to hijack use of private property, and refuse efforts to allow federal courts to review challenges. (The Supreme Court will also address this issue on October 1, 2018).
Another consequence is over-criminalization. For instance, federal property managers delegated to write federal property regulations turned innocuous activity into criminal behavior: falling asleep at the U.S. Meat Animal Research Center in Clayton, Nebraska; collecting on a private debt while in the National Arboretum; and riding a bicycle without a horn at the National Institutes of Health. When everything becomes a crime, criminal law ceases to have a meaningful positive effect.
Congress has dodged accountability by sloughing off its lawmaking responsibilities for 83 years. The Supreme Court shouldn’t let Congress off the hook when Congress doesn’t do its job. This is why PLF filed a supporting brief urging the Court to revive the Non-Delegation doctrine.
PLF’s brief explains the various negative consequences of the Court’s refusal to enforce the Non-Delegation doctrine. Further, it explains that the Supreme Court has already enforced the similar “void for vagueness” doctrine, which requires that criminal laws explicitly state what is punishable conduct, not leave it up to the discretion on individual officers or government agents. For example, government officials cannot arbitrarily decide what counts as a crime. The Court can—and should—apply the same standard in Gundy.
The Supreme Court heard oral argument in Gundy on October 2, 2018.