The Supreme Court should tell Congress to do its job

This morning the U.S. Supreme Court heard arguments in Gundy v. United States. At issue in Gundy is a constitutionally impermissible re-delegation of legislative power from Congress to the Attorney General, under which the Attorney General is empowered to decide, without the slightest guiding “intelligible principle” from Congress, the retroactive applicability of a criminal statute. The Court’s acceptance of Gundy, solely on the Separation of Powers issue, signals a clear willingness to reconsider this essential doctrine.

James Madison, the “Father of the Constitution,” once wrote that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” To prevent just such an accumulation, the Framers built the Separation of Powers into our constitutional order. The most important protection of our liberty, the Separation of Powers prohibits any branch of the federal government from re-delegating (giving away) its unique constitutional powers to another branch, institution, or individual.

In the opening lines of the Constitution, “We the People” vested “All legislative Powers” in Congress. However, for the last 83 years, the Supreme Court has allowed Congress almost unlimited latitude to re-delegate its legislative power and democratic responsibility to executive agencies, to regulate nearly every aspect of our lives from the products we buy to the food we eat with effectively no legislative guidance. Since 1935 the Court has struck down only a single statute for violating this “non-delegation doctrine.”

Given PLF’s long term goal of reining in the power of the administrative state and our experience with dozens of overbroad regulatory laws, PLF filed a “friend of the court” brief in the Supreme Court in which we lent our extensive litigation and public policy expertise to this important question.

Our brief argues not only that the current intelligible principle standard for governing congressional re-delegations of its legislative power lacks a basis in the text and original meaning of the Constitution, but that it frustrates the democratic accountability of Congress, and leads to the violation of individual rights. Instead of reluctance over drawing the line between impermissible executive lawmaking and permissible discretion, we contend that the Court is fully capable of drawing such a line, and already has for many years in an similar doctrine with deep roots in the common law.

It is our sincere hope that the Court will decide not only to strike down the unconstitutional re-delegation at issue in Gundy, but will breathe new life into the Separation of Powers upon which so much of our liberty depends.