The framers of the Constitution knew the job of keeping the legislative power confined was tricky. They understood doing so is key to the nation remaining a representative republic. The power of the legislative branch couldn’t be trusted to self-policing by Congress.
Separation of powers…
Often enough, legislators face rational incentives to pass problems to the executive branch. Guess what, they have done it often. Enforcing the separation of powers isn’t about protecting institutional prerogatives. It also isn’t always about some vague governmental turf protection.
Separation of powers is about respecting the people’s sovereign choice. What we decided is to vest the legislative power in Congress alone. It’s about safeguarding a purpose structure designed. It protects the liberties, minority rights, fair notice, and the rule of law of the people. This is how we hold lawmakers accountable.
So, how much authority can Congress give the attorney general to effectively write criminal laws?” In Gundy v. United States, a plurality of the Supreme Court answers: as much as Congress wants to give. That is a bad decision, worse it is with precedent.
https://casetext.com/case/gundy-v-united-states-3
Position of the Justices…
The plurality opinion written by Justice Kagan was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Alito joined in the judgment, not the reasoning. Justices Gorsuch, Roberts, and Thomas dissented. Justice Kavanaugh took no part in the case; the court heard oral arguments before he was sworn in as a justice.
The case…
In this case Gundy argues Congress impermissibly delegated its legislative authority. Congress allowed the attorney general to decide whether and how to retroactively apply a law. The law in question was the Sex Offender Registration and Notification Act of 2006 (SORNA).
SORNA established a uniform system to register sex offenders. It corrects loopholes and deficiencies in the patchwork system at the state level. It requires anyone convicted as a sex offender to register. They must register in every jurisdiction where they live, work, or go to school. Failure to register under SORNA is a separate criminal offense.
On its face SORNA did not answer an important question. What do we do with those convicted before SORNA’s enactment? The law delegated authority for that to the attorney general. the authority to determine its applicability to pre-act sex offenders. Mr. Gundy argued that Congress did not say how, when, or even whether the attorney general should make that determination. He argued that SORNA was an unconstitutional delegation of Congress’ authority.
The question…
So the question became: How much of its power can congress Delegate? Article I of the Constitution vests “All legislative powers” in Congress. It prohibits Congress from delegating its legislative authority to the other branches. Seems pretty straight forward, right?
History of the law…
Despite this, the Supreme Court has a history of permitting Congress to delegate its legislative powers. It has allowed a great deal of authority to be transferred to executive branch agencies and officials. Only twice has the court prevented Congress from delegating its authority to another branch of government. The specific cases were in Panama Refining Co v. Ryan and Schechter Poultry Corp. v. United States. Both cases are from 1935. In the ensuing 84 years the court has never struck down a delegation to a federal agency.
It has permitted every delegation. SCOTUS rationalizes this saying it has a requirement; a test. The test is: as long as Congress specifies an “intelligible principle” to guide the relevant agency in exercising discretion to make law. That is a pretext; a rationalization it is not a reasoned constitutional position.
For the majority… for the quibble
Justice Kagan pointed out some of those delegations have been broad indeed. They include delegations to federal agencies to regulate in the “public interest,” to set “fair and equitable prices,” and to establish air quality standards that are “requisite to protect public health.” Can you say who needs a legislative branch? What are they doing beside collecting a salary? How do we the people hold the legislative branch accountable for laws they do not make? Therein lies the problem.
Surprise! In Gundy, the plurality found an intelligible principle. A plurality of the court found the delegation was much narrower than Gundy argues. It reasoned that the text made the statute retroactive because it defined “sex offender” as “an individual who was convicted of a sex offense.” That’s called parsing to reach a conclusion with no constitutional support.
Opinion analysis: Court refuses to resurrect nondelegation doctrine
What the majority could divine
They also relied on the legislative history and purpose of the act. From which they divined Congressional intention. Then, by inference, they came to a ruling that the attorney general should apply SORNA to pre-act offenders “as soon as feasible.” Yeah, they should have tossed the law and set it back to its makers… but they didn’t. They deferred to the unconstitutional shifting of legislative authority to an unelected bureaucrat.
The plurality concluded that SORNA required the attorney general to apply SORNA to pre-act offenders. It did so with no constitutional or legal reason. The AG gets to write the law subject only to a feasibility determination. This is the sort of delegation the court has routinely upheld. It is contrary to the purpose of the structure of the government.
The dissent…
Gorsuch, Roberts and Thomas dissent argues that the plurality “reimagine[d]” the text of the statute. The dissent argued that the “intelligible principle” test has no basis in the Constitution. It has allowed Congress to delegate far more authority than the Constitution permits. Congress’ proper role is to make all policy decisions. It may, however, allow the executive branch to “fill up the details.”
SORNA gives the AG total authority to set registration policy with respect to pre-act offenders. It permits the AG to impose all, some, or none of SORNA’s requirements. The AG is permitted to apply them on all, some, or none of the pre-act offenders. It also gives the AG discretion to change his mind at will. Congress retained no policy-making authority… at all. The dissenters would have found SORNA’s delegation unconstitutional.
Alito concurred in the plurality’s judgment but not in its reasoning. He signaled that he might be willing to reconsider the court’s non-delegation jurisprudence. That would be conditional on whether a majority of the court was willing to do so. Why would he be so weak to not overturn a bad decision already in place. That’s sad. But it reflects the operation of the court.
Conclusion
Perhaps in the future, the court will take up another case to resurrect the non-delegation doctrine. Doing so would strengthen the separation of powers principles envisioned by the Framers. It would be a step toward returning accountability to our political system.