In imperfect Gundy decision, Supreme Court opens door to strengthen separation of powers

June 20, 2019 | By MARK MILLER

Today the Supreme Court of the United States opened the door for future cases that might restore a separation of powers doctrine called the nondelegation principle.

In the decision on the Supreme Court case Gundy v. United States, a plurality of four justices and a conditional vote by Justice Alito together concluded that, under the Court’s current standard, Congress did not improperly sub-delegate its law-making authority to the Department of Justice when it instructed the Attorney General to determine whether a criminal law known as the Sex Offender Registration and Notification Act (SORNA) would apply retroactively to criminal sex offenders. But Justice Alito also wrote that he would be open to reconsidering that questionable legal standard in a future case.

Although Pacific Legal Foundation argued in its amicus brief in the case that this sub-delegation violated the Constitution’s strict separation of powers among the three branches of government, we take heart from much of the back and forth to be found in the various opinions to emerge from the case. While four justices clearly voted to uphold Congress’ delegation of authority, the opinions suggest that there might be a five-vote majority in the future to reconsider similar cases.

“Today’s set of opinions is the most encouraging move to reinvigorate the nondelegation principle in 85 years,” said Todd Gaziano, PLF’s chief of Legal Policy and Strategic Research, and director of our Center for Separation of Powers. “Though Gundy itself was not resolved well, the non-plurality opinions suggest there may be five members of the current Court who are willing to reexamine the Court’s doctrine and increase the Court’s role in policing congressional delegations of lawmaking authority. The powerful and likely prophetic three-justice dissent by Justice Gorsuch (with Roberts and Thomas), together with Justice Alito’s explicit statement that he is willing to revisit the nondelegation doctrine when a majority of the Court is available to do so, signals that five current justices would be willing to act, if Justice Kavanaugh is so disposed.”

In the Gundy case, the Supreme Court considered how the courts should enforce the Constitution’s strict separation of powers. The facts of this criminal case are not the central legal issue, but a brief explanation helps illustrate the dilemma.

While on federal supervised release related to a drug charge, Herman Gundy was convicted in state court of a sex offense. When he completed his state prison sentence, he was transferred to a Pennsylvania prison on a different charge. There he received permission to travel to New York to serve his time in a halfway house. He did not, however, register with the federal government as a sex offender, as required under the federal Sex Offender Registration and Notification Act.

Although Gundy’s underlying crime occurred prior to SORNA’s passage, Congress included a provision in SORNA that sub-delegated to the U.S. Attorney General its authority to decide if the SORNA law would apply retroactively. The Attorney General decided it would, and the Department of Justice issued a regulation that said as much. The DOJ then charged Gundy with violating SORNA.

To better understand why this matters, step back and remember the essential structure of our government. The Founders created three separate branches of government in the Constitution and gave the legislative branch—Congress—the authority to write the federal laws that govern the American people.

The Constitution then sets elections to vote on congressional representation every two years (every six in the case of the senators, per the Seventeenth Amendment) in order to establish accountability for those who write the laws. If the laws they pass do not accord with what the voters want, then the voters can remove legislators from office via the ballot box.

Congress cannot delegate its law-writing power to the other branches, just as those branches cannot delegate their constitutional authority to enforce the laws (the Executive Branch) or interpret them (the Judicial Branch). This separation of powers protects our liberty—wisely. By diffusing power among the three branches, it prevents any one branch from developing too much unchecked power.

The courts call this prohibition on one branch delegating its authority to another the “nondelegation principle.” However, Congress, with the Supreme Court’s permission, has ignored that prohibition by broadly delegating its law-making powers (rather than just minor details of execution) to executive agencies for more than 80 years. Under the current, but now disputed, legal standard, the courts permit this violation of the separation of powers as long as Congress gives the Executive Branch an “intelligible principle” to follow in filling in the gaps in the law. This allows for Congress to punt hard decisions to the bureaucrats, and to escape accountability at the ballot box.

Advocates for delegating power to executive agencies in this manner contend that the federal bureaucracy serves a modern nation’s interests in a way the Founders may not have envisioned, but would have approved. After all, they argue, no single congressman could know everything he or she needs to know to create and approve the myriad rules and regulations the bureaucracy creates.

And ultimately, if the people do not like those rules and regulations, they can elect a different president who, as chief executive, will install different bureaucrats to write better rules and regulations. Thus, from a certain perspective, the modern application of the delegation doctrine retains a measure of accountability, even if it is not the accountability the Founders expected.

The Supreme Court agreed to review the case for one reason: to determine whether Congress’ use of SORNA to delegate its lawmaking power to the Attorney General—regarding whether the law should apply to criminals who committed crimes before it was enacted—violates the nondelegation doctrine.

Pacific Legal Foundation argued that it did: the delegation allowed Congress to shirk the hard decision of whether the law should apply retroactively, and thus dodge accountability at the ballot box if the voters disagreed. But the plurality opinion that said the delegation did not run afoul of the Constitution ultimately concluded this delegation easily included the “intelligible principle” that the Court has required in order to approve delegations of Congress’ lawmaking power in the past.

To be sure, this criminal case did not make for the perfect vehicle to address the nondelegation principle. That fact was not lost either on the groups that wrote amicus briefs in the case (like PLF) or the justices themselves. For her part, Justice Kagan’s plurality opinion implicitly takes the position that the question the Court agreed to hear was not the question to be decided. She concludes, on behalf of three of her colleagues, that a tortured textual analysis of SORNA, combined with an anachronistic reliance on legislative history, shows that Congress indeed did decide that SORNA should apply retroactively.

If so, then why did the Court grant the case in the first place? The decision that SORNA did not improperly delegate congressional law-making power to the Attorney General may have won the day, but the logic used to make that case by Justice Kagan creates more questions than it answers. Thus, not surprisingly, the Justice Kagan plurality opinion failed to muster the required fifth vote to stand as the deciding opinion in the case.

For his part, Justice Alito concurred in the judgment upholding this delegation—giving the result the necessary fifth vote—simply because he thought it “freakish” for the Court to author an opinion that struck down this delegation but otherwise left the “intelligible principle” loophole intact for future congressmen to rely upon to continue to violate the separation of powers through improper delegations of power to the Executive Branch. And Gorsuch, writing for Thomas and Roberts, dissented from the judgment and explained why this delegation was unconstitutional and the intelligible principle needed reconsideration. His opening echoes the larger point PLF made in its amicus brief and has made here:

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.

And later in his dissent, Justice Gorsuch explains how these delegations of authority to the Executive Branch often are so vague as to be void, another point entirely consistent with, if not taken from, the amicus brief PLF submitted in the case.

With Justice Kavanaugh not participating in the decision (the case was argued before he took his seat), we now know—in a world post-Gundy—that four justices want another opportunity to address the delegation doctrine, and a fifth justice who has previously expressed misgivings about the outsized federal bureaucracy can take up the question in the next case that presents the issue, as well.

Our colleague in PLF’s Center for Separation of Powers, Todd Gaziano, puts it best: “Gorsuch’s and Alito’s opinions together are nothing short of an open invitation to litigants and lower court judges to present cases to the high court that could fully reinvigorate the nondelegation principle in the foreseeable future. Pacific Legal Foundation is delighted to take up that invitation.”

See you in Court.