The unwanted gift. We’ve all been there. Whether during Christmas, birthdays, or graduations, we have opened a present we then simply refused to use. Some of us respond by hiding the gift in a closet, never more to see the light of day. Others of us may try a different approach: regifting it to someone else. People take this latter route so commonly that rules of etiquette exist for how and when to give away that undesired item.
For nearly a century, Congress has treated its legislative power like that unwanted present. It has given away (regifted) much of its legislative authority to other governmental entities, doing so through vague statutory language that leaves most actual policy decisions to executive officers and bureaucrats.
The problem here is that regifting isn’t allowed. Constitutionally, Congress and no one else can create national policies that govern American citizens. But judicial enforcement of Congress’s no regift rule, called the nondelegation doctrine, has lain unused since the 1930s. This judicial resignation has allowed, even endorsed, massive expansions of executive and bureaucratic regulatory power.
Some hoped that Gundy v. United States, decided on Thursday by the Supreme Court, would change that. They were disappointed, for now.
The case involved the Sex Offender Registration and Notification Act, passed by Congress in 2006. This law created a national system to register those convicted of sex crimes, replacing the previous, state-based approach. While the statute gave detailed instructions for its enforcement against subsequent sex offenders, it did not do so for those previously convicted. Instead, the law merely said that the attorney general would “specify the applicability of the requirements” of the Sex Offender Registration and Notification Act to those convicted before the law was enacted.
Herman Gundy, a convict prior to the law, challenged this part of the law on nondelegation grounds. His lawyers argued that Congress gave the attorney general carte blanche to enforce what rules he wished, when he wished.
This case, then, seemed like an excellent vehicle finally to place some limit on Congress’ legislative abdication. Congress must give at least some rules to executive officials in how they enforce the law. Otherwise, the same persons who enforce the law also make it, inviting tyranny.
But by a 5-3 vote, the Supreme Court upheld the law. The nondelegation doctrine, long dormant, remained so after Thursday.
Or did it? While the outcome was troubling, the written opinions gave reason for hope. Justice Elena Kagan’s plurality opinion did not outright reject the nondelegation doctrine. Instead, she spent most of her opinion arguing that the Sex Offender Registration and Notification Act actually placed strict requirements on the attorney general. Far from having absolute discretion, she read the law to require the attorney general to apply every element of the Sex Offender Registration and Notification Act to previous offenders. The only choice the executive branch possessed lay in the timing of implementation.
Justice Neil Gorsuch’s dissenting opinion exposed the weakness of Kagan’s reading, showing the various ways in which the statute truly did confer legislative power, shorn of any real limits, on the executive branch. Kagan and the law’s defenders engaged in an effort to “reimagine” or “rewrite” the law to fend off nondelegation accusations.
But Gorsuch’s opinion did much more. He presented a long disquisition on the underlying issue of the nondelegation doctrine: the nature of the constitutional separation of powers. With great insight and clarity, he articulated the necessity of separating legislative and executive power to protect liberty. He described, too, both principled and practical means to draw the line between lawmaking and law enforcement. He, in short, laid out a blueprint for how to reestablish constitutional government on this question.
Of course, Gorsuch wrote in dissent. But there is reason to think this case a small foreshadowing of a bigger and better outcome. First, Justice Brett Kavanaugh took no part in the decision, having not been seated before the case was argued. Second, the crucial fifth vote for the outcome came from Justice Samuel Alito. He agreed with Kagan that the Sex Offender Registration and Notification Act provided enough guidance to not delegate lawmaking power. But he joined nothing else about her opinion. In fact, he stated in a concurring opinion that “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.”
Thus, we really had a 4-4 vote regarding the substance of the nondelegation doctrine. With the addition of Kavanaugh, there is reason to think that a new case might give a different result. If and when that case does arise, we already have the framework prepared. No matter how much it might wish otherwise, Congress constitutionally cannot regift its legislative power.
Let’s hope that, in a future majority opinion, Justice Gorsuch tells it why.
Adam Carrington is assistant professor of politics at Hillsdale College.
