Executive Power

A Troubling Supreme Court Decision on Non-Delegation

Today's ruling in Gundy v. United States allows Congress to delegate to the executive broad power to create new criminal offenses. But there is hope the Court might reconsider Gundy in the future.

|The Volokh Conspiracy |

Today's Supreme Court decision in Gundy v. United States sets a troubling new precedent allowing Congress to delegate broad power to the executive over the scope of federal criminal law. In a powerful dissent joined by Chief Justice John Roberts and Clarence Thomas, Justice Neil Gorsuch argues that the ruling essentially allows Congress to "hand off to the nation's chief prosecutor the power to write his own criminal code." I fear that Gorsuch is right.

Gundy addresses the constitutionality of Section 20913(d) of the Sex Offender Registration Notification Act, which requires convicted sex offenders to sign up for a national registry, and imposes criminal sanctions on those who disobey. Section 20913(d) focuses on "pre-Act" offenders—those who committed their crimes before SORNA was enacted in 2006. The text seems to give the Attorney General virtually unlimited discretion to to decide which, if any, pre-Act offenders will be required to register. Here's what it says:

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the en­actment of this chapter . . . and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).

The text does not impose any constraints on the AG's power to determine "applicability" or to "prescribe rules," for the registration of this category of offenders—which includes some 500,000 people. He can require all of them to register, some of them, or none. Nor does it impose any time limit. As Gorsuch puts it, "[t]he Attorney General may choose which pre-Act offenders to subject to the Act. And he is free to change his mind at any point or over the course of different political administrations."

The plurality opinion by Justice Elena Kagan recognizes that this law would be an unconstitutional delegation of legislative power to the executive if it gave the AG "plenary power to determine SORNA's applicability to pre-Act offenders." But she concludes that other parts of SORNA lead to the conclusion that the law actually requires the AG to impose the registration requirement on all pre-Act offenders "as soon as feasible."

For reasons Justice Gorsuch explains, this requirement is nowhere to be found in the actual text of the statute, and is inconsistent with the practices of attorneys general in all three administrations that held office since SORNA was enacted. "[T]he feasibility standard is," he points out, "a figment of the government's (very recent) imagination," adopted late in the course of the litigating this very case. Much more importantly, however, it doesn't actually impose any meaningful constraint on executive discretion:

A statute directing an agency to regulate private conduct to the extent "feasible" can have many possible meanings: It might refer to "technological" feasi­bility, "economic" feasibility, "administrative" feasibility, or even "political" feasibility. Such an "evasive standard" could threaten the separation of powers if it effectively allowed the agency to make the "important policy choices" that belong to Congress while frustrating "meaningful judicial review." And that seems exactly the case here, where the Attorney General is left free to make all the important policy decisions and it is difficult to see what standard a court might later use to judge whether he exceeded the bounds of the authority given to him.

Gorsuch is right again. Unless the statute gives some explanation of what kind of "feasibility" Congress has in mind, an "as soon as feasible" constraint turns out not to be much of a constraint a tall.

Gorsuch's opinion also offers an excellent explanation of why this kind of broad delegation—especially in the field of criminal law—is at odds with the text and original meaning of the Constitution, and deeply problematic from the standpoint of both separation of powers and protecting civil liberties.

Both the plurality and Gorsuch recognize that Supreme Court decisions since the 1930s have upheld a variety of other dubiously broad delegations. The relevant precedent requires only that there be an "intelligible principle" underlying a delegation of power, and the Court has interpreted that requirement in a highly permissive way. But never before has Court upheld such a broad delegation in the field of criminal law (as opposed to civil regulatory authority).

This result should trouble not only critics of  the "administrative state," but also civil libertarians concerned about giving the executive broad discretion to determine the scope of criminal law. I had hoped that at least some of the liberal justices might endorse the position advocated in an amicus brief filed by the American Civil Liberties Union, which argues that such broad delegation is permissible in the regulatory context, but unconstitutional in the field of criminal law. But sadly all four of them joined Kagan's opinion, thus giving it the status of a plurality opinion of the Court, in a case in which only eight justices participated, because Brett Kavanaugh had not yet been confirmed when the case was argued in October.

The rise of Donald Trump has helped reawaken some liberals to the threat that unconstrained executive power poses to civil liberties. Few such powers are more dangerous than the authority to  determine the scope of criminal law. Unfortunately, Justice Kagan and her colleagues don't seem to recognize the danger.

Justice Samuel Alito wrote a concurring opinion explaining 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. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment." As already noted, I think this law can be distinguished based on the extremely broad discretion it gives the AG in the criminal law context. But Alito's statement that he is willing to reconsider previous precedent does offer hope that Gundy might be overruled or at least limited in a future case (assuming Kavanaugh agrees).

Some conservatives and libertarians hoped and some liberals feared that a ruling against the government in Gundy (or a future decision reversing it) would seriously undermine the modern administrative state.  Gorsuch's dissent throws some cold water on these notions:

Nor would enforcing the Constitution's demands spell doom for what some call the "administrative state." The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation's course on policy questions like those implicated by SORNA. What is more, Congress is hardly bereft of options to accomplish all it might wish to achieve. It may always authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers. Congress can also commission agencies or other experts to study and recommend legislative language. Respecting the separation of powers forecloses no substantive outcomes. It only requires us to respect along the way one of the most vital of the procedural protections of individual liberty found in our Constitution.

I can imagine a non-delegation doctrine so restrictive that the modern regulatory state really would be severely constrained. But, as Gorsuch makes clear, the approach advocated by the Court's most conservative justices would not go anywhere near that far. It would, however, prevent Congress from giving the president the power to create new criminal laws and wide-ranging regulations without imposing any meaningful substantive constraints on their applicability.

Under this approach, we would still have an extensive administrative state that exercises broad powers. But some of its worst abuses would be curbed.

Last year's travel ban ruling highlighted a major blind spot of the Court's conservative justices: their willingness to set aside normal constitutional constraints on government power in cases that involve immigration restrictions. Gundy reveals a similar flaw in the jurisprudence of the four liberals: their devotion to delegation overrides their civil libertarian principles. That applies even to Ruth Bader Ginsburg and Sonia Sotomayor, who are particularly sensitive to civil liberties concerns in most other contexts.

It may well be just a pipe-dream. But someday I would like to see a Supreme Court justice who supports both Gorsuch's dissent in Gundy, and Sotomayor's powerful dissent in the travel ban case.  If that ever happens, the Supreme Court will truly be great again—or at least a lot closer to greatness than it is today.

NEXT: House of Representatives Votes to Rescind Authorization for Our Endless Wars

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  1. “requires Congress to assemble a social consensus before choosing our nation’s course ”

    Gibberish. All it takes is about 268 legislators to vote for something.

    Obamacare passed with substantial opposition from more than half the public [per polls].

    No “social consensus” needed.

    1. Most Congresspeople like to stay Congresspeople. Picking something deeply unpopular has an impact… as opposed to voting for something people turn out to like once they have it.

  2. This isn’t a delegation problem. It’s an ex-post-facto law problem.

    1. The Supreme Court rejected that argument 15 years ago.

      1. You may be shocked to learn that sometimes I think the Supreme Court reaches the wrong answer.

        1. It’s absolutely an ex post facto problem. And 15 yrs ago it passed based on proven false stats, and only on fear. And at the time it passed it claimed it was not punishment because at that time all it did was took your address. Now a days the restrictions are far worse and the not punishment is actually the worst punishment.

          But that doesn’t not qualify it as a delegation problem also. They got around the ex post facto by delegating the AG to enact it behind…..

          You know what, it’s a tangled weave they weave that will for sure be unravelled. Hopefully before Congress destroys our country. Congress refuses to pass laws and pushes responsibility to everyone else they can to have someone else who is unelected nor can be held accountable.

          It’s a joke……

  3. I’d actually welcome a more muscular nondelegation doctrine. I’m all for the administrative state, but for various reasons Congress seems to have discovered that legislative inaction is politically selected for, and I’m all for ensuring they do at least some of their job some of the time.

  4. ” Congress seems to have discovered that legislative inaction is politically selected for”

    Agreed.

    “I’m all for ensuring they do at least some of their job some of the time.”

    Objection. Assumes facts not in evidence. Move all the delegated stuff back onto Congress’ plate and all you do is ensure it doesn’t get done. Maybe you (like a lot of Americans, apparently) want to see the government not getting things done… but I think enabling this behavior further is a problem. For an example to how an undealt-with problem gets huge in a hurry, look at immigration. We make a bunch of rules about who can come, and why, and when, but don’t deal with anywhere near all the people who say “neat, but I don’t want to wait.”
    Now, if Mr. Trump’s big beautiful wall were to be built AND magically worked at keeping new illegals out 100%, we’ll only need about 40 or 50 years to deal with all the illegals already here, at the current rate of processing deportation cases. But Congress won’t allow increasing the number of deportation cases, and wouldn’t even when it was controlled by R’s for whom this is allegedly a priority.

    1. Politics getting in the way of law is the constitution working as intended.

      Bypassing politics so politicians don’t have to worry too much about why people are being heaved into jail isn’t a desirable feature.

      1. “Politics getting in the way of law is the constitution working as intended.”

        In the sense that the Constitution has no provisions for political parties whatsoever, sure. It’s juuust the way they designed it.

    2. “Move all the delegated stuff back onto Congress’ plate and all you do is ensure it doesn’t get done.”

      90% of it shouldn’t get done.

    3. And there lies the importance of voting in people to do there job. And if they don’t they get replaced. Working in congress is like being a weather man these days. They never have to do anything accurate and have no consequences.

      Make them do there job……

  5. Sotomayor’s dissent would be powerful if she didn’t base it on a faulty premise that the travel ban must be motivated by anti-Muslim sentiment. More than 95% of the world’s Muslims are still able to travel freely. Her Establishment Clause argument has no meaning. She didn’t even try to make a more sophisticated argument. Everything she said can be summarized as “but I know Trump hates Muslims, so all your other reasons are just excuses to cover for his bigotry.”

    It read like a CNN hitpiece and was honestly pathetic.

    1. “a faulty premise that the travel ban must be motivated by anti-Muslim sentiment. More than 95% of the world’s Muslims are still able to travel freely.”

      Ah. The old “it’s ineffective, so it can’t POSSIBLY be based on poor judgment” defense.

      1. That’s your strawman. It’s not that the ban was ineffective. It simply could not have been a Muslim ban because under no circumstances could it ban people on the basis of their faith. Even if executed properly, more than 95% of the world’s Muslims are able to travel freely. That’s because it isn’t trying to ban Muslims.

        1. ” It’s not that the ban was ineffective. It simply could not have been a Muslim ban because under no circumstances could it ban people on the basis of their faith.”

          OK, so it’s not ineffective… it’s really, really ineffective.

      2. “it’s ineffective,
        Its (the travel ban) purpose was to prevent travel from failed states that were incapable or unwilling to vet its issuing of travel papers.
        That you assign religious persecution as a motive, exposes your political bias. (Ban originated with Obama)

        1. “That you assign religious persecution as a motive”

          You’re right. How foolish of me to take Mr. Trump at his word that he would persecute religiously.

          “(Ban originated with Obama)”

          You need to adjust your medication.

          1. That’s the #1 symptom of TDS. You take Trump literally but not seriously. You think that’s exactly what he’s trying to do and are incapable of prescribing some degree of higher reasoning behind his actions.

            The ban did in fact originate in the Obama white house. He signed this law into effect.

            https://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program

            The law alters the travel requirements for people from the same 7 countries that Trump chose. These countries were chosen, despite not being the most dangerous in the sense of # of terrorists that came from them, for other security reasons that were just as valid in 2015 as they are today. Trump merely tightened already existing restrictions on travel.

            1. “That’s the #1 symptom of TDS. You take Trump literally but not seriously.”

              OMG, I can’t take YOU seriously. You diagnose TDS like certain California doctors used to write pot scripts.

        2. (Ban originated with Obama)

          No. Stop repeating RW lies.

    2. Speaking of Muslim bans:

      “Washington (CNN)The FBI on Wednesday arrested a 21-year-old Syrian refugee living in Pittsburgh, accusing him of planning to bomb a church in the name of ISIS.”

      I was assured that there was no way a refugee terrorist could slip by, the screening was too rigorous. Memories.

      1. If the President wants to introduce a terrorist ban, preventing terrorists from traveling to the United States, I’m guessing the opposition will be muted at most.

  6. “The rise of Donald Trump has helped reawaken some liberals to the threat that unconstrained executive power poses to civil liberties.”

    It is not unconstrained. Congress can impose constraints.

    1. This “awakening” by the left will only last as long as a Republican holds the presidency. Then they (and Somin) will once again recognize the importance of a powerful executive. Especially if Republicans continue to hold one or both Houses of Congress.

      1. Your broad brush is going too far. As a libertarian socialist I hope to qualify for your “left”, and I am not alone in not selling off my civilian libertarian principles for political expediency. While some might grant you a little leeway for hyperbole (I don’t), your gratuitious attack on Ilya without providing any evidence is inexcusable.

        1. Simple question: what’s your opinion on DACA?

          I know what Prof. Somin’s position is.

          http://volokh.com/2012/06/20/in-praise-of-obamas-new-immigration-policy/

          1. “Simple question: what’s your opinion on DACA?”

            Congress should have voted on it.

            1. Then you’re in substantial disagreement with Prof. Somin regarding excessive executive power.

              Lots of people in this country agree with Prof. Somin: a powerful executive is good when my side controls the executive; a powerful executive is bad when the other side controls.

              But those people aren’t opining on what should be the proper constitutional restraints on executive power.

              1. “Then you’re in substantial disagreement with Prof. Somin regarding excessive executive power.”

                That’s some pretty impressive mind-reading you’ve got going on there, what with your ability to tell who my opinion on a subject is in disagreement with without hearing a damn word about what my opinion actually is.

                “Lots of people in this country agree with Prof. Somin: a powerful executive is good when my side controls the executive; a powerful executive is bad when the other side controls.”

                By any chance, are you projecting?

          2. what’s your opinion on DACA?

            Great idea. Sensible, humane, beneficial to the country.

      2. What’s that got to do with me?

  7. It isn’t like non-delegation is the only problem with deciding years after the fact that a prior conviction is going to carry an extra penalty.

    Suppose you committed a burglary, and served your time. A decade later, the legislature decides that the sentence for burglary was too short, tacks on an extra five years, and sends somebody around to drag you back to prison for five years.

    Would this stand even a moment’s constitutional scrutiny? I think not, but how does the subject of this case meaningfully differ from that scenario? You committed the crime years ago, served the time, and now along comes somebody and decides that the penalty wasn’t sufficient, and tacks an extra penalty on. Subject yourself to it ‘voluntarily’ or face prison time.

    This sort of thing shouldn’t be constitutional even if Congress does the heavy lifting itself.

    1. Would this stand even a moment’s constitutional scrutiny? I think not, but how does the subject of this case meaningfully differ from that scenario?

      Because the registration requirement (unlike, say, a prison sentence) isn’t punishment.

      1. “Because the registration requirement (unlike, say, a prison sentence) isn’t punishment.”

        Sure it is. Its imposed as a direct consequence of conviction.

        The government does not yet require the non convicted to register with the sheriff every time they move. Yet.

        1. “Sure it is. Its imposed as a direct consequence of conviction. ”

          The USSC found it to be not punitive. Tell THEM about your different conclusion(s), and how they got it wrong.

          But in the mean time, as a matter of law, sex-offender registration is not punitive.

      2. Of course it’s a punishment. Nobody volunteers for it, nobody is subjected to it without some sort of conviction.

        “It’s not a punishment” is just a rationalization.

        1. You asked what the difference is. That’s the difference, according to the Supreme Court in Smith v. Doe, 538 U.S. 84 (2003). If you don’t like it, take it up with them.

          1. No, that’s what they rationalized the difference was. I might have to pay attention to the judiciary’s sophistries, but they don’t yet punish us for noticing that they’re sophistries.

            1. I am reminded of an old riddle:

              Q: A farmer has three cows and two horses. How many cows does he have if you call one of the horses a cow?

              A: Three. You can call a horse a cow if you want to, but that doesn’t make it one.

              The Supreme Court can call registration non-punitive if it wants to, but that doesn’t make it non-punitive.

              1. Feel free to take it up with them. In the meantime, as a matter of law, federal sex-offender registration is non-punitive.

                1. I’m not going to take it up with them.

                  I fully understand that, as a matter of law, it’s “non-punitive.” I’m just saying, like Brett, that calling it non-punitive defies logic and common sense, though apparently the law doesn’t care.

                  Not the first time.

                  1. ” I’m just saying, like Brett, that calling it non-punitive defies logic and common sense”

                    The federal sex-offender registry is non-punitive.
                    Some of the states (note carefully that word “some”… it’s pretty important.) then proceeded to load up a whole bunch of punitive provisions.

                    Don’t confuse the two.

  8. “But never before has Court upheld such a broad delegation in the field of criminal law (as opposed to civil regulatory authority).”

    Yes they have. See United States v. Smith 18 US 153. And see In re Kollock 165 US 526.

  9. “It would, however, prevent Congress from giving the president…”

    Does anyone think nondelegation would prevent Congress from giving these same powers to one of its own agencies? (Like the CBO?)

  10. This is a sad day for our constitution.

    Very sad day. Remove Gundy being a sex offender and it wins 9 to 0. Everything that was argued is completely unconstitutional. Our government does not give one man the power to decide if over 500,000 people can have law be retroactively applied to them. And that same 1 person decide how to punish. This is just absolutely horribly wrong.

    I hope congress decides to go after DUI’s next and create a law if you get a DUI you can never drive again. Then let the attorney general decide that it applies that rule to everyone prior that ever had a DUI. It’s the same thing being done here

    1. “Our government does not give one man the power to decide if over 500,000 people can have law be retroactively applied to them.”

      Sure it does. If the USA in a federal district decides not to prosecute, the law does not apply them. Some of the federal districts have fewer than 500,000 people in them, but most have more.

  11. I was getting worried as I read the OP but Ilya finally came through. He sounded reasonable until he got to his open borders fetish at the end. I was beginning to think I would have to revise my opinion of him.

  12. […] the cross case may capture the most headlines, some of the other cases may be more important. As Ilya Somin notes in a post below, the Court rejected a non-delegation challenge to the Sex Offender Registration and Notification […]

  13. […] the cross case may capture the most headlines, some of the other cases may be more important. As Ilya Somin notes in a post below, the Court rejected a non-delegation challenge to the Sex Offender Registration and Notification […]

  14. […] the cross case may capture the most headlines, some of the other cases may be more important. As Ilya Somin notes in a post below, the Court rejected a non-delegation challenge to the Sex Offender Registration and Notification […]

  15. I do not understand the uproar. The Executive via the administrative state has been making law for years. Simply another case of the congress apparently lacking the expertise to legislate. What would one expect. Give an inch, take a mile.

  16. Not versed on case law, I am always fascinated when the textial interpretation of the law is confronted to the judicial interpretative history. (Full disclosure: as a former public official in another country, I always have been very much annoyed by the muddling of vonstitutional roles ever present.)
    My take on the case at hand: Alito got it right. This is not the case to reverse 84 years of legal history.
    Also, the decision does NOT address the question of ex-post punishment, as it could not (well, if they want they do it anyway, don’t they?) because the issue
    wasn’t brought up by the appellant.
    The dissemt does mot question ALL delegation, rather its excessive scope. But there is a fundamental dissent on the factual extent of discretion Congress gave the Attorney General, i.e. Justice Gorsuch certainly wouldn’t object that the AG shouldn’t have the discretion who in the end is registered; he contests Justice Kagan’s assertion that the statute’s reading in the previous Reynolds decision does not allow for the final exclusion of anyone.
    That is, both agree that there SHOULD be no discretion.
    If Kagan’s reading is right, Gorsuch’s objection to the vagueness of the feasibility principle boils down to an objection to the AG deciding in what SEQUENCE the ex-post registration should proceed. Frankly, I wouldn’t have a problem with that.

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