A few days ago I wrote about a piece in the NYT, in which a lawprof worries that the Supreme Court might curb Congress’s unconstitutional delegation of power to executive-branch agencies. Here is a quotation from that piece, with my comments in brackets:
Justice Neil Gorsuch wrote a lengthy dissent [in Gundy v. United States] extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly [?], two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical [constitutionally correct] opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say 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.”
Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.
So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else [who’s this “we”?].
Today, Justice Gorsuch issued the majority opinion in United States v. Davis, in which he wrote this:
Only the people’s elected representatives in Congress have the power to write new federal criminal laws.
Guess who concurred fully in the opinion? Not Roberts, Thomas, Alito, and Kavanaugh — all of whom dissented. No, Gorsuch was joined by Ginsburg, Breyer, Sotomayor, and Kagan — the “liberals” on the Court.
With Gorsuch’s opinion as precedent, the “liberals” have just opened the door to a future ruling that enforces the non-delegation doctrine. (Just what the lawprof fears.)
If it’s true that only the people’s elected representatives in Congress have the power to write new federal criminal laws, it’s equally true that only the people’s elected representatives in Congress have the power to write new laws, period. And writing new laws is just what executive-branch agencies do when they write regulations pursuant to vague congressional directives to “do good”, or words to that effect.
Yes, the writing is on the wall for the hands-off doctrine that has effectively transferred legislative (and judicial) power from Congress (and the courts) to legions of unelected bureaucrats.
Politics and Prosperity 