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Why the Executive Branch Shouldn’t Legislate

Progressives appreciate the separation of powers—up to a point.

Brett Kavanaugh, who joined the Supreme Court this week, and Neil Gorsuch, who was appointed last year, share a commitment to maintaining the separation of powers between Congress and the executive branch. Although leftish opponents of both nominations portrayed that commitment as a threat to enlightened federal regulation, it can also produce results that progressives welcome, as illustrated by a case the Court heard last week.

At issue was the federal Sex Offender Registration and Notification Act (SORNA), which Congress passed in 2006. SORNA prescribes fines and up to 10 years in prison for sex offenders who do not register with the states where they live or who fail to keep their information up to date.

The law devotes 21 pages to establishing "a comprehensive national system" for registering sex offenders but leaves a crucial question unresolved: Do these requirements apply to sex offenders who were convicted before the law was enacted? SORNA gives the attorney general broad authority to decide which of those half a million or so sex offenders (if any) must comply and "to prescribe rules for registration of any such sex offender."

As a judge on the U.S. Court of Appeals for the 10th Circuit, Gorsuch criticized that provision for giving the attorney general too much discretion. "If the separation of powers means anything," he wrote in a 2015 SORNA case, "it must mean that the prosecutor isn't allowed to define the crimes he gets to enforce."

It was therefore not surprising that Gorsuch last week sided with a sex offender who was challenging retroactive application of SORNA. "I'm having trouble thinking of another delegation in which this Court has ever allowed the chief prosecutor of the United States to write the criminal law for those he's going to prosecute," Gorsuch said. "We say that vague criminal laws must be stricken….What's vaguer than a blank check to the attorney general of the United States to determine who he's going to prosecute?"

Writing in Slate, Mark Joseph Stern said this case "creates a dilemma for the left, because SORNA is a truly terrible law, and its retroactivity provision deserves to be invalidated." In Stern's view, "any criminal justice reformer" should oppose retroactive application of SORNA, which "drives America's mass incarceration problem by sending rehabilitated offenders back to prison because they failed to fill out certain paperwork."

The dilemma, as Stern sees it, is that "countless federal laws," including those authorizing environmental and financial regulations, "use broad language to let agencies enact policies to carry out Congress' objectives." He worries that such laws could be at risk if the Court starts to get serious about enforcing the "nondelegation doctrine," which says Congress cannot cede its legislative powers to the executive branch.

For similar reasons, fans of federal regulation are troubled by criticism of the Court's deference to administrative agencies when interpreting "ambiguous" statutes. Gorsuch has questioned that tendency, which Kavanaugh has described as "an atextual invention" and "nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch."

Stern's dilemma is based on a fear of too much consistency. But if it's dangerous to let the attorney general write the laws he enforces, isn't the same thing true of regulators, especially when breaking their rules carries criminal penalties? Both situations raise the same concerns about fair notice, accountability, and abuse of power.

You might think progressives would appreciate the principle at stake here when the man in charge of the executive branch is someone they fear and loathe. If you don't trust Donald Trump's governing instincts, shouldn't you want the courts to limit the damage he can do by limiting the discretion of the agencies he controls?

The separation of powers is not an end in itself. The aim, as John Adams explained when he drafted the Massachusetts Constitution, is "a government of laws, and not of men." The idea is especially relevant in these contentious times.

© Copyright 2018 by Creators Syndicate Inc.

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  • TLBD||

    You might think progressives would appreciate the principle at stake here when the man in charge of the executive branch is someone they fear and loathe.

    That is far too much credit to give a progressive.

  • Rev. Arthur L. Kirkland||

    I understand why people like TLBD resent their betters. And I support their right to whine and be disaffected.

  • JesseAz||

    You're getting lazy in your trolling. Still dumb as shit, but now you've added lazy to your repertoire.

  • Nardz||

    "Progressives appreciate the separation of powers—up to a point."

    Citation missing

  • Tom B||

    Um, the Slate article he discussed extensively.

  • Nardz||

    Ha!
    Good joke

  • GoatOnABoat||

    Progressives appreciate the separation of powers—when it suits them.

  • JesseAz||

    Their idea of separation of power is that no entity but them can have power.

  • sarcasmic||

    Progressives have no principles other than 'might makes right.'

    If they like the outcome of the executive writing laws about A then it's good. If they don't like the outcome about the executive writing laws about B then it's bad. Doesn't mean they like or dislike the executive writing laws. That would be having principles. Nope. Each case is totally different. The outcome is what matters.

  • Lance L||

    I could, and do, same the exact same thing about conservatives. How about all those conservative christians who've embraced Trump. There is some serious twisting to make that consistent with their principles and values.
    I think for most principles are flexible. "If my preferred outcome happens that matches my principles, because I've thought this through, I'm right, so my principles must also be sound."

  • NashTiger||

    Oh, good, more False Equivalency - my favorite Reason feature

  • NotAnotherSkippy||

    Now do libertarians who think due process is transactional, or that censorship is ok if you don't like what's being said (and not ok when you do), or that government investigations are good because they could prove you innocent.

  • Nardz||

    The closest a progressive will ever get to admitting (obvious, overwhelming) defeat is the false equivalence card.
    Reason writers are quite adept at it.

  • AER1972||

    that is solid progressive stand

  • TLBD||

    Why so many people here do not understand degrees is beyond me. Sure, the Republicans do often show a lack of principle, but the degree of which pales in comparison to the left.

    The left is dangerous, and even when it looks like they are for some sort of freedom, they are really just looking for more power to the government.

    The right is not equivalent to the left on the scale of freedom. Not even close. Anyone who thinks so is stupid or crazy.

  • Rev. Arthur L. Kirkland||

    Get an education, you bigoted, can't-keep-up rube.

  • TrickyVic (old school)||

    ""How about all those conservative christians who've embraced Trump."'

    I think you would need to be mores specific on which principle.

    They seem pretty solid on anti-abortion regardless of who's in power. But when they try to phrase it as a pro-life stance it becomes a miss. At least for the subset of that group that is ok with the death penalty. I've debated them on that issue often. They say only god can end a life and I get a sideways look when I say government is usurping god's will with the death penalty.

  • damikesc||

    I could, and do, same the exact same thing about conservatives. How about all those conservative christians who've embraced Trump.

    One party routinely demeans them.
    The other party does not.

    You stick with who doesn't seem to hate you.

    It's why MEN voting Democrat are fucking imbeciles.

  • Rev. Arthur L. Kirkland||

    If there is one thing Republicans do effectively, it is pander to superstitious, bigoted yahoos.

  • JesseAz||

    Nothing is superstitious as believing in the benevolence of a political state entity.

  • JesseAz||

    If you actually understood Christianity it wouldn't be hard to figure out. Which party openly celebrates the murder of the unborn? Which party is actively trying to make it illegal to be christian? I mean, you may be stupid, but I think even you can figure this one out.

  • Paloma||

    They are really more concerned that a nice unselfish leader who cares about everyone is the executive writing laws, rather than a mean greedy racist woman hater.

    That's why Obama can get away with droning weddings, making promises to Putin, and jailing immigrants because he's a caring nice daddy who says all the right things, while Trump is a mean daddy who keeps offending all the wrong people is the new Hitler .

    Even with the same outcomes.

    Progressives want to be ruled by unselfish experts who care and especially care about people who are taken advantage of by selfish profit seekers.

  • Rich||

    SORNA gives the attorney general broad authority to decide which of those half a million or so sex offenders (if any) must comply and "to prescribe rules for registration of any such sex offender."

    For a better-known example of Congress not doing its job look at the ACA. Much of the regulation development was kicked out to the unelected HHS Secretary.

  • JesseAz||

    HHS is the new EPA!

  • Fist of Etiquette||

    He worries that such laws could be at risk if the Court starts to get serious about enforcing the "nondelegation doctrine," which says Congress cannot cede its legislative powers to the executive branch.

    The SORNA case should demonstrate to the left the dangers of unspecific laws, regardless if they are darlings of your side or not. If you allow one terribly written piece of legislation gift prosecutors and regulators with new powers, then you have to allow all. There's no dilemma to a principled left, right or center.

  • Conchfritters||

    Hell, Sullum doesn't even mention war! Talk about vague law, the Authorized Use for Military Force has been used since 2001 to allow military action in Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia. Can anyone explain to me a situation where it wouldn't apply??

  • EscherEnigma||

    Where the sitting President wouldn't want it too.

    It's almost like this isn't actually a "progressive" thing, just a "politician" thing.

  • Nardz||

    Clinton: progressive
    Bush: progressive
    Obama: progressive

  • EscherEnigma||

    You want to play "No True Scotsman", go for it.

    But you shouldn't expect anyone to take you seriously if you do.

  • Nardz||

    Wow, that's a weak card to play even in your pathological defense of progressives.

  • JeffreyL||

    Can't harp enough about how good a pick Gorsuch was.

  • NashTiger||

    GOAT SCOTUS

  • Rev. Arthur L. Kirkland||

    Enjoy it while you can, clingers. A brief respite from a half-century of getting your lame asses whipped by your betters must be nice.

  • Angelique||

    Alas, if only the Congress did its job, we would not need so many executive order.

    Since the goal of the Republicans in Congress was to frustrate Obama they got known as a "do nothing" congress, and since Nature abhors a vacuum, the executive had to fill the gap.

    Yes, it would be nice if Congress passed laws. We could have had a inmigration policy if they did, As it is, if it were not for executive orders, nothing would get done.

  • sarcasmic||

    For the first hundred years or so of this country's history, when skepticism of government was a cherished American value, the last thing people wanted was for the government to get things done. The less a president got done, the better they were thought of. That's because people understood that government is force, and that force should be a solution of last resort.

    Nowadays that has been turned on its head. The more a president does, the better he is. Force is the go-to solution for every problem imaginable.

    The founders would be ashamed of what this nation has become.

  • Angelique||

    Do you realize that the first hundred years ended up in the Civil War? It must not have been that great or it would not have come crashing down with so much death and suffering.

  • JesseAz||

    This was the same excuse used to have the Feds manage the economy. The time between recessions has increased, but the recovery time has also increased. You are literally arguing from a sample point of one.

  • Angelique||

    A Civil War is a major systemic failure . And major systemic failures are usually the result of not fixing problems when they are small and manageable.

    IN fact, the original US died in the Civil War. What came afterwards was a refashioning of it. There is a reason why before the Civil WAr the phrase was "the U.S. are" and after "the US is"

  • Angelique||

    I take that the Fugitive Slave Law passed during those 100 years was an aberration.

    A law that said that Federal Marshalls had the right to invade your home looking for escaped slaves, and arrest you if they found any, even if you lived in a state where slavery was illegal.

    I guess that those Southern planters were not THAT skeptical of Government then.

  • JesseAz||

    We also had the aliens and sedition act. It got cleared up in the end. It would be nice if the USSC would sometimes see a case so erroneous that they take it up without it winding through the courts, but shit happens. It's not a reason to dismantle our current government.

  • Angelique||

    So, for people skeptical of Goverment, they did manage to make a lot of laws.

    But I guess laws that favor you and people like you are OK. It is the other ones that should not be passed.

  • NashTiger||

    What a great Libertarian argument - if those dumb worthless lazy Congresspeople don't get busy passing laws to regulate every aspect of life (EXCEPT: abortion clinics), well, then, the POTUS just HAS to. Because muh Issues.
    "Yes, it would be nice if Congress passed more laws" - libertarian commentator.
    Oh, and we already havbe immigration laws and policies.

    Have I just been trolled by the newest OBL? Please tell me I have been trolled

  • No Yards Penalty||

    Angelique isn't a libertarian. A new sock puppet of one of the leftist trolls, maybe.

  • Angelique||

    Funny, I do not look trollish. And by the way there is a difference between

    "Only the Congress should make laws" and "there should be no laws"

    Because if you do not want laws, why get a Congress and pay them to do nothing?

    Alas, Congress is hired to PASS laws. And when it is being paid, we want to see what we are getting for our money.

  • Angelique||

    And by the way, the public DOES want SOMETHING done about inmigration Since the Congress did nothing, it was up to either Obama or Trump who had to come up with solutions. And if you do not like the solutions, blame Congress for falling asleep on the job.

  • fdog50||

    Where do progressives get the idea that within the Constitution there is a clause that says that if Congress does not do what the President wants it to do, the President can take "executive action" to do whatever he wants done? He can do some things that are within his power, but not broad actions such as Obama attempted with "dreamers" and which were struck down as beyond the scope of executive power. What it comes down to is that progressives want unlimited power by Presidents to make progressive policies, but nothing else.
    And, by the way, many believe that the Constitution created Congress to make necessary laws through reasoning and compromise. Apparently progressives believe that Congress must make laws, any laws, in order to justify its existence, and that failing to enact a law that the majority believes is not necessary is contrary to Congress' purpose. That is a senseless argument.

  • TrickyVic (old school)||

    They make it up. Complement it when it fits there needs. Complain when the other team does it.

  • TrickyVic (old school)||

    I guess you've been blaming Congress for trump throwing kids cages?

  • Angelique||

    Of course. Because if Congress had passed an inmigration law and made it work, Trump would not have been elected by promising to build a wall, and so many people would now be happy about kids being put in cages.

    Problems that are not solved at the legislative level, do get solved somehow - but I guarantee that you won't like it when it gets done.

    Because, surrpise, surprise, when people see a problem taht needs solving - and too many see those - and when their patience grows thin - they do not care that much as to who solves it, as long as someone is seen doing something.

    I do not know if you have read an old book by Norman L. Stamps "How Democracies perish" which shows that the rise of dictatorships - fascists or not - in Europe after World War I was the direct result of ineffective Parliaments. It is a warning to those who think that a "do nothing Congress" is amusing.

  • Paloma||

    For the first 100 years after this country's founding there WERE no immigration laws. Congress didn't see any reason to make laws that were not specified in the Constitution.

  • Angelique||

    There were no inmigration laws because at that time there was no inmigration problem. It had nothing to do with the Constitution.

    Remember it was that Congrss that trampled on States' Rights to enact the Fugitive Slave Laws, because the Southerner had a problem with their slaves escaping to a better life.

    It was not that they did not like laws. It ws tha they only liked laws that favored them.

  • CE||

    Congress shouldn't get paid, except maybe travel expenses to DC and back home. They should meet for a few days every two years, repeal the old laws that are out of date, and then go home.

  • Rev. Arthur L. Kirkland||

    Do disaffected wingnuts wonder why society ignores them?

  • Red Tony||

    From reading your comments, I get the sense you don't wonder anything at all.

  • JesseAz||

    Hey dummy... Congress' job is not to pass laws. It is to legislate. This can be a state of no laws or the passing of the laws. How large is the law book in your state? you honestly are advocating more more more? I agree with NYP, you're not a fucking libertarian.

  • TrickyVic (old school)||

    "" the executive had to fill the gap."'

    The executive can't fill a gap it is not authorized to fill.

    However if you really believe what you're posting, you will not have a problem when Trump fills the gap when he's dealing with a do nothing congress.

  • Angelique||

    So what happens when the gap is not filled at all?

    Hint: Listen to people screaming "build the wall" to see what happens when the Congress passes no laws.

    Because people wanted SOMETHING to be done. Even if that something is a wall.

    I been to too many city hall meetings and I noticed that the same people who complained about the government power and that it should not exist were only too quick to demand that the local government provided parking.

    So I figured out that people do not want government to tell them what to do, but they want governmetn to do things they want or like.

    Maybe you and your friends are truly pure and do not demand anything from government. But from what I obsered, you are a minority.

  • JesseAz||

    First, the absence of law is not a gap. It is simply an absence of law. There is no constitutional mandate to continue growing our federal legal state.

    "Because people wanted SOMETHING to be done. Even if that something is a wall."

    People in large group are idiots. Who gives a fuck. This doesn't allow one to violate their constitutional duty.

    "I been to too many city hall meetings and I noticed that the same people who complained about the government power and that it should not exist were only too quick to demand that the local government provided parking."

    Call out their idiocy instead of validating them like you are doing here.

    You're an authoritarian nutjob.

  • Angelique||

    I do not validate it. I notice it. And I can do the math. People like you are a minority - the majority is I as describe. This is the reality. Live with it.

    "People in large groups are idiots" Are you saying that idiots cluster together, or that when enough people are together their IQ begins to fall?

    Or maybe that idiots consitute the majority of the population and you and those like minded consist of an enlightened minority.

    Of course, if the majority of the population are idiots, then the theory of the free market falls down. Because what is the market but the aggregate of individual buying and selling decisions decided ratioally by the participants. But if the majority of the population are idiots, then, after watching them make wrong choices in religion, and politics, and personal relations, they suddely become founts of wisdom when they go shopping.

    Maybe if you spent less time abusing verbally those who do not behave as you wish, and instead studied people and why they do what they do, you might learn something.

    And remember, the proof of an assertion is measured by the number of successful predictions based on it.

  • Migrant Log Chipper||

    The idiot here is you, sugar britches. You are so fucking dumb how do you manage to breathe?

  • Angelique||

    "Contradiction is no argument"

    Monty Python
    Neither is abuse

    Either offer arguments or wash your mouth with soap

    And study history. And I do not mean pre-digested ones, but try to dig up as close to the original sources as possible and get different point of view, because you find interesting nuggets out there, and try to get insights.

    You have no idea how much fun it is.

  • Angelique||

    You could pick up an old book "Why democracies fail; a critical evaluation of the causes for modern dictatorship" by Norman L. Stamps.

    Reminds you that no laws being passed and no Government acting does NOT end up in rainbows and sunlight, but by people welcoming a dictator.

    The world is as it is, not as we with it should be - as (still dead) Generalissimo Franco explained to Lyndon Johson as he urged him to reach an agreement with Ho Chi Minh and get out of Vietnam

  • JesseAz||

    "Alas, if only the Congress did its job, we would not need so many executive order."

    What a silly assertion, that we have to have executive orders at all.

  • GoatOnABoat||

    Why Only the Legislative Branch Should Legislate.
    Why Only the Judicial Branch Should Judicate.
    Why Only The Executive Branch Should Execute.

  • Leo Kovalensky II||

    "Why Only The Executive Branch Should Execute."

    Be careful, some might (and have) prefer an alternate definition be used from what you had in mind for "Execute"

  • GoatOnABoat||

    Exactly :)

  • Uncle Jay||

    Progressives appreciate a lot of things, but not the separation of power.

  • CE||

    Because that's what dictators do, duh.

  • Wrecker Service||

    Yes, he can do some things that are within his power, but not broad actions such as Obama attempted with dreamers and which were struck down as beyond the scope of executive power!!!

  • TxJack 112||

    Why would progressives ever support limiting the power of government? To claim they would is ludicrous. Progressives are committed to the power of government control and they only thing they oppose is the Constitution which clearly limits the power they want to wield. Progressives would never be opposed to the executive branch using its regulatory power to impose "laws" it cannot get passed through Congress which is exactly what happen during the 8 years of the Obama administration. When President Trump began repealing those regulations, it was progressives who sued in specific Federal courts with well -known activist judges to stop him.

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