Supreme Court expert Ian Millhiser of Think Progress has a fascinating and troubling post today about the kind of damage that the Court could do in the near future with a 5-4 majority under the crusading, ideological leadership of Neil Gorsuch. In “Want to know how badly Republicans on the Supreme Court will overreach? Watch this one case.,” Millhiser explains, the Court could unleash an “earthquake that upends much of the federal government and throws offices like the Environmental Protection Agency into complete and utter chaos.”
It turns out that there’s a widely accepted principle of constitutional law that limits how much authority Congress can delegate to the executive branch. When interpreted with some measure of common sense, the rule bars the complete delegation of authority — as happened many decades ago when Congress gave the Roosevelt administration unfettered discretion to regulate prices in various industries — without hamstringing federal agencies as would happen if, say, the EPA had no discretion to mandate “the best system of emission reduction,” as it currently enjoys with respect to certain polluters.
Unfortunately, Neil Gorsuch seems to like the idea of removing discretion from agencies like EPA. Hence, if he gets his way, a current case (Gundy v. the United States) about delegation of authority under an obscure law that regulates sex offenders could wind up providing the key the sowing chaos at agencies like the EPA. Here’s Millhiser:
So Gundy should be an easy and insignificant case. In drafting SORNA [the Sex Offender Registration and Notification Act], Congress appears to have committed a rare violation of an obscure constitutional doctrine. And there appears to be bipartisan agreement that this is the case.
Yet Gundy is also a dangerous case because it gives the Court’s right flank a vehicle it could use to radically limit federal power.
In 2015, federal appellate Judge Neil Gorsuch criticized the very provision of SORNA that is now before the Supreme Court. Along the way, he suggested expanding the nondelegation doctrine in ways that would make it nearly impossible for the United States to have very basic environmental laws, among other things.
In his 2015 opinion, Gorsuch gave a handful of examples of what he views as permissible delegations of power from Congress to the executive. If Congress provides “that margarine manufacturers must pay a tax and place a stamp on their packages showing the tax has been paid,” Gorsuch wrote, “Congress may leave to the President ‘details’ like designing an appropriate tax stamp.” Similarly, Congress could provide that certain restrictions on an industry may be triggered by a “factual finding by the President.”
But it is far from clear that Gorsuch would allow federal agencies to do much more than do graphic design or make narrow fact findings. It is very far from clear, for example, that he would let EPA determine what is “the best system of emission reduction” that must be used by certain power plants.
There is, in other words, an easy way to decide Gundy, and a hard way. There is a way that has very few implications for future cases, and there is a way that could destroy much of the federal government’s ability to function.
Which path the Court’s Republicans pick in this case will give us a very good window into how aggressively they plan to reshape the law if someone like Brett Kavanaugh joins their ranks.