To protect liberty, the Supreme Court must apply nondelegation doctrine

It’s not often one has the opportunity to undo an original sin. The U.S. Supreme Court recently had that opportunity in Gundy v. United States. Unfortunately, the justices ate of the forbidden apple once again, leaving intact a 1928 ruling and continuing to forfeit some of our rights to self-governance. 

In Gundy, the court analyzed whether the Constitution requires Congress to pass laws or whether it allows Congress to delegate lawmaking authority to executive agencies. The specific issue involved a provision of the Sex Offender Registration and Notification Act (SORNA) that authorized the attorney general to “specify the applicability” of the law’s registration requirement to sex offenders, such as Herman Gundy, convicted before the law’s enactment. Gundy challenged this expansive authority. He believed the Constitution prohibits Congress from delegating to the executive branch the power to create a law that would punish him. 

Writing for a 5-3 majority (Justice Kavanaugh was not yet on the court when the case was argued), Justice Kagan left intact a 1928 ruling, J.W. Hampton and Co. v. U.S., that allowed agencies to make rules that further broad and imprecise legislation. As Kagan put it, Congress “may confer substantial discretion on executive agencies to implement and enforce the laws.” But Kagan’s opinion largely misses the point. While executive agencies today surely “implement” and  “enforce” laws, they also often make the law. And that is the problem the court refused to correct.

Congress increasingly delegates to executive agencies, with little legislative guidance, the authority to make rules. Years ago, the court allowed agencies only to supply factual details necessary to fill in minor gaps in legislation. While that approach was not perfect, it did put the onus on Congress to do its job. Since J.W. Hampton, however, the court has allowed Congress to delegate broad grants of authority to agencies so long as it provides an “intelligible principle” to guide them. 

In practice, the intelligible principle requirement has become a paper tiger. For example, it an be as vague as ordering the Securities and Exchange Commission to act “in the public interest or for the protection of investors.” The Gundy court ought to have put an end to this constitutional charade and ruled that the Constitution prohibits Congress from delegating lawmaking authority to agencies.

The court’s refusal to apply the nondelegation doctrine jeopardizes our liberties. When the court allows excessive delegation, it enables Congress to hand off tough policy questions to unelected agencies. Indeed, one of the key takeaways from political scientist Morris Fiorina’s book, “Congress: Keystone of the Washington Establishment,” is that members of Congress deliberately cede power to agencies so they can avoid controversial votes that might cost them their offices. Rather than behave like real legislators, they choose instead to act like ombudsmen, helping constituents who later have problems with agencies. The court’s failure to apply the nondelegation doctrine incentivizes such legislative behavior. 

The Gundy court’s neglect of this is all the more troublesome when one realizes that the public’s recourse from bad laws is, primarily, to vote out those who crafted them. But when bureaucrats make the law there is no electoral recourse. And without electoral recourse, our system of government becomes uncontrollable, a monster that can impose its will without constraint. 

The Gundy decision also ignores the plain text of the Constitution. Article 1 § 1 states that “all legislative powers herein granted shall be vested in a Congress of the United States.” By noting that all legislative powers vest in the legislature, the Constitution confirms the ancient understanding that power to make law derives from the people. 

One argument against the court imposing the nondelegation doctrine is that it would strip our leaders of needed agency expertise. Modern society is simply too complex for generalists in Congress to create laws. Even if that claim is correct, it settles nothing. The Constitution does not prevent Congress from creating legislative agencies stacked with experts who could recommend to Congress which laws to pass. Empowering Congress thusly would remain more faithful to our constitutional design than current law.

What is more, the court’s refusal to apply the nondelegation doctrine is simply inconsistent with other constitutional doctrine and has created a one-way ratchet in favor of the administrative state. For example, in INS v. Chadha (1983), the court adopted a formal interpretation of the Constitution that prevented Congress from exercising a legislative veto to block agency action. The court, however, has tossed this formalism aside when it comes to the nondelegation doctrine. There, the court has taken a functional approach, often bending over backwards to avoid stepping between Congress and administrative agencies. 

The court has often adopted formalism when Congress seeks to constrain the administrative state but a functional approach when it empowers it. The end result has been a stronger administrative state and less self-governance.

Still, all is not lost. In his concurring opinion in Gundy, Justice Alito noted that if a majority of the court — presumably with the full complement of nine justices — is willing to reconsider the nondelegation doctrine in the future, he will go along. Let’s hope the court does. And let’s hope it gets it right next time. 

Ryan J. Owens is a professor of political science at the University of Wisconsin and the director of the Tommy G. Thompson Center on Public Leadership. Follow him on Twitter @professor_owens.