Will Supreme Court push Congress to get back to its job of making law?

Originally published by The Hill June 4, 2018.

In the Constitution, the opening phrase “We the People” vests all legislative powers in Congress. The power to write the federal laws that govern the American people belongs to Congress. The most important protection of our liberty embedded in the Constitution — the separation of powers among the three branches of our federal government — prohibits any branch from redelegating its unique powers to another branch. The courts call this the nondelegation doctrine.

However, Congress, with the Supreme Court’s permission, has ignored that prohibition by delegating its lawmaking powers to executive agencies for more than 80 years. These agencies are staffed with bureaucrats who can’t be voted out of office, and many blame that lack of accountability for the growth of the regulatory state in the decades since the New Deal.

But the Supreme Court has signaled it may revoke its longstanding approval of the administrative status quo. It recently granted review of a criminal case, Gundy v. United States, which will allow the court to limit legislative powers to Congress, where they belong.

The facts of the criminal case are not the central legal issue, but a brief explanation helps illustrate the constitutional problem. 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, the government transferred him to a prison in Pennsylvania on a different charge. While in Pennsylvania he received permission to travel to New York to serve time for that crime 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 (SORNA) when a sex offender crosses state lines.

Although Gundy’s underlying crime occurred prior to SORNA’s passage, Congress included a provision allowing the U.S. attorney general to decide if the law would apply retroactively to offenders who committed SORNA crimes before the law’s passage. The attorney general decided it would, issued a regulation that said as much, and then charged Gundy for violating SORNA when he crossed state lines without registration.

Gundy challenged this conviction on a number of grounds, but the Supreme Court agreed to review the case for one reason: to determine whether Congress’s 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.

The court last struck down a statute for violating the nondelegation doctrine in 1935. The court’s acceptance of the Gundy case, solely on this issue, signals a willingness to revisit this doctrine and perhaps resurrect it. In the case, the Supreme Court will decide whether Congress overstepped its constitutional bounds by empowering the attorney general to unilaterally make law.

Although the nondelegation doctrine does not prevent Congress from “obtaining the assistance of its coordinate branches,” as the court has said, it does require Congress to minimally explain — by way of what the court has called “an intelligible principle” — what it wants the federal agency to do. But unsurprisingly, Congress often fails to muster any principle, intelligible or otherwise, to explain what it expects the agency to do.

Such is the case here. The attorney general’s regulation applying SORNA’s registration requirement retroactively to Gundy’s crimes before the act’s passage may be a legitimate decision, but it is a decision for Congress to make, according to the Constitution.

Like Gundy, American businesses face retroactive applications of new regulatory standards all the time. For example, regulatory agencies reinterpret a broad statutory term, such as what constitutes a wetland, and then conclude that a landowner violated the Clean Water Act in years past. Or, they narrow the definition of “normal farming practices” by regulation and then deny the statutory exemption to American farmers for normal farming practices based on practices conducted before the regulation was finalized.

And the voter cannot punish the writer of these commands because Congress cleverly has passed the lawmaking buck to bureaucrats who cannot be voted out of office. That is the rub — our Founding Fathers delegated the lawmaking authority to Congress, and then made legislators responsible to the people by allowing the people to vote them in or out of office every two years, according to how Congress abused or properly used its lawmaking power.

Congress insulates itself from this accountability by shirking its lawmaking responsibility and handing it off to bureaucrats. The Supreme Court should use the Gundy case to put a stop to this purposeful avoidance of accountability.

To be clear: if Gundy wins his case, his conviction for not registering under SORNA would be reversed, but Congress would then most likely amend the law to require registration for old crimes. That puts the lawmaking onus back on Congress where it belongs. In reality, this case is less about Gundy than it is about the Supreme Court reining in the regulatory state run amok, and requiring Congress to get back to doing its job.

Mark Miller is a senior attorney for Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.