In “If the New York Times Is Worried [I’m Happy]” I quote an opinion piece by a law professor; in particular:
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”?].
In a sequel, “The New York Times Has More to Worry About“, I write about Justice Gorsuch’s majority opinion in United States v. Davis; this passage in particular:
Only the people’s elected representatives in Congress have the power to write new federal criminal laws.
I go on to say this:
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.
John C. Eastman, writing at RealClearPolitics, underscores the significance of Alito’s seemingly miscast vote in Gundy v. United States, where he sided with the Court’s “liberals”:
[Gundy] lost because Justice Brett Kavanaugh was recused from the case, and [Justice Samuel Alito] rather than casting a vote in line with his own previously expressed views on the subject (“The principle that Congress cannot delegate away its vested powers exists to protect liberty,” [as] he noted in the American Railroads case), … concurred in the judgment against Gundy, providing the necessary fifth vote to Justice Elena Kagan’s plurality opinion upholding the delegation of authority in this particular case.
To understand how strategic a vote that was, a little inside-baseball background is required. When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided” court.” In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case. Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent. But neither would it have been a majority, because of Kavanaugh’s recusal. Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day. Indeed, the public would not even know what the actual line-up of the justices was, as the perfunctory affirmance by an equally divided court doesn’t even list which justices were on which side of the divide, much less their reasons.
Yet Alito left no doubt where he stands on the matter. Significantly, he did not join Kagan’s opinion (thereby making it only a plurality opinion), but concurred only in the judgment, noting that he could not say the statute lacks a “discernible standard that is adequate” to support the delegation “under the approach this Court has taken for many years.” But he added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” In a case in which Kavanaugh is not recused, there is likely to be the necessary majority to undertake the very reconsideration that Alito said he would support. Kavanaugh’s tenure on the D.C. Circuit was marked, after all, by a strong devotion to separation-of-powers principles, and there is no separation of powers principle more basic than the non-delegation doctrine. So I say to the non-delegation doctrine, “Welcome back!”