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 Sex Offender Registration and Notification Act (SORNA), which prescribes up to 10 years in prison for sex offenders who do not register with the states where they live or fail to keep their information up to date. SORNA lets the attorney general decide whether and how sex offenders convicted before the law was enacted must comply, which Gorsuch sees as an unconstitutional transfer of legislative power to the executive branch.
While progressives tend to agree with that conclusion, they worry that the same principle could endanger regulations they like. But if it's dangerous to let the attorney general write the laws he enforces, Jacob Sullum says, the same thing true of regulators, especially when breaking their rules carries criminal penalties.