Day 126: Dystopian Visions of an All-Powerful Chief Executive
On Monday, I finally get to dive into separation of powers with my Administrative Law class. This is my favorite part of the course. I love starting with the day-to-day practice of administrative law, to underscore how and why all this constitutional theory stuff matters for real people.
Then I really love geeking out on constitutional theory. Because theory isn’t just some excuse for pointy heads to hear themselves talk. Theory matters.
Boring Name, Scary Questions
For example, on Monday, we’ll talk about the nondelegation doctrine. This awkwardly-named doctrine says that Congress can’t delegate legislative power to the executive branch because, duh, only Congress can legislate.
But there’s a”but.” “Nondelegation” has become an almost ironic name for a doctrine that has never been used by the Supreme Court to strike down any delegation by Congress to the executive since 1935, and only two back then. So “nondelegation” pretty much means “delegate whatever you want.”
In 2019, though, the Supreme Court announced its not-very-resounding support for the doctrine in a case called Gundy v. United States. There, five justices upheld a law that allowed the Attorney General to announce pretty much whatever standards he wanted to require registry by offenders who were convicted before Congress passed a sex offender registry statute. More importantly, Justice Alito didn’t join the plurality opinion. He said he might consider ditching the nondelegation doctrine in a future case with a majority.
The Gorsuch Non-Nondelegation Test
Justice Gorsuch, joined by Justice Thomas and Chief Justice Roberts, would have abandoned the test now. Instead of the rubber stamp that nondelegation has become, Gorsuch wrote, we ought to ask:
Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.
Gundy was decided by only eight justices, since Kavanaugh wasn’t on the Court in time to hear the arguments. And Justice Barrett now occupies the former seat of Justice Ginsburgh, who voted with the majority. (We might assume, though we can’t be certain, that Justice Jackson would vote similarly to Justice Breyer.) With Alito already on the outskirts, a vote from either Kavanaugh or Barrett could be the nail in the coffin of the nondelegation doctrine.
Imagining a dystopian Post-Nondelegation World
I’ve never been a big fan of the nondelegation doctrine, as a conceptual matter. But that rug’s been under Congress for 90 years. I’m wondering what would happen if the Court suddenly pulled it out?
Arguably, many statutes would satisfy Justice Gorsuch’s standard, or a similar one. But standards like the executive “only … making factual findings” and Congress making “the policy judgments” could still be malleable. How much judgment, if any, could the executive be allowed to exercise?
In theory, torching nondelegation should limit the power of the executive branch. Or does it?
Right now, when we say “executive,” we mostly mean agencies. But if the Court limits the power of federal agencies, it also places a greater percentage of executive power directly in the hands of the president. This might play right into the hands of the idea of the “unitary executive” that Trump and his supporters are pursuing, as I’ve discussed before.
And consider the dysfunction of Congress. If the Court creates a new standard and instructs lower courts to strike down existing laws drafted with the old (nondelegation) standard in mind, we might be left with executive power much more concentrated in the president and legislative power tied up in the coatroom in back, as former statutes get swatted down by the lower courts.
Maybe I’m Overreacting
Perhaps Alito, Barrett, and Kavanaugh will stick with the nondelegation doctrine, if only out of reluctance to upset “reasonable investment-backed expectations,” to borrow a phrase from Takings law. Or maybe Justice Gorsuch’s standard would be interpreted as only a bit more stringent than nondelegation, leaving most statutes in place.
Personally, in light of the chaos that a sea change could cause, I think I’d keep the ugly duckling of nondelegation. Perhaps the Court’s signals on the issue have already put Congress on notice to add more rigor to its delegations. That wouldn’t make me cry.