Is The Administrative State On Borrowed Time?
Is the Supreme Court about to curtail the administrative state (and perhaps circumscribe judicial activism) by holding that Art. 1, Sec. 1 of the Constitution actually means what it says?
For the past near century — since FDR’s infamous court packing scheme — the administrative state (or bureaucratic state, call it what you will) has ever increasingly come to rule this country, working extra-Constitutional and fundamental changes to the fabric of society by promulgating regulations with the force of law that could never pass through Congress. (For but three of countless possible examples, the HHS Obamacare birth-control mandate that was a direct attack on religion in America, the EPA’s regulation of carbon dioxide as a pollutant despite rejection by Congress, and the regulation of the internet under the rubric of net neutrality.) It is the single greatest threat to America as a constitutional republic.
In a decision issued 20 June 2019, Gundy v. U.S., Justices Roberts, Thomas, Gorsuch, and Alito explicitly stated that they are prepared to enforce the plain words of the Constitution and limit as unconstitutional Congress’s delegation of legislative authority to administrative bodies as currently practiced. Justice Kavanaugh, who did not take part in the Gundy decision but whose criticism of the administrative state is well documented, could well be the fifth vote. Such a decision would fundamentally remake this nation and take us back to our constitutional roots. It would be, in essence, a bloodless revolution.
At issue in Gundy was whether a law passed by Congress and delegating Congress’s authority to the Attorney General to decide particular matters of policy regarding sex offenders violated the Constitution. Article I Section I of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States . . .”
Theoretically, Art. 1 Sec. 1 “bars Congress from transferring its legislative power to another branch of Government” (creating the so-called “non-delegation doctrine”). In practice, progressive courts over the past near century have rarely found a delegation of power by Congress to be unconstitutional. Kagan, writing for the four progressive members of the Court in Gundy, justified again finding a broad, open-ended delegation of authority Constitutional by quoting a 1989 decision written by Justice Blackmun, Mistretta v. United States:
“[I]n our increasingly complex society, replete with ever changing and more technical problems,” this Court has understood that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Ibid. So we have held, time and again, that a statutory delegation is constitutional as long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”
To translate that from Newspeak, that means ‘the constitutional system is not viable so we are amending it to turn this nation into a bureaucratic socialist state.‘ That has meant baking progressive values and policies — such as delegating legislative powers to executive agencies — into the Constitution as newly divined constitutional law only capable of being corrected by a new Supreme Court decision or by an amendment under Article V. As Justice Kagan observes:
[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.
Bingo!!!! And that is as it should be. This system jury-rigged by progressive Courts is not the system set forth by our Founders in the Constitution. It is an obscene parody created by FDR and progressives near a century ago to govern outside of the Constitution. It has been perpetuated by people of both parties in Congress who, for all of their theater, in the end have been happy to take the Court’s invitation to give their duties as policy makers to unelected bureaucrats so that they do not have to make hard decisions. [NOTE that, even after eight years of grotesque misuse of the bureaucratic state to remake this country outside of Constitutional bounds by the Obama administration, the Republican Senate killed the Reins Act that would have gone a long way to restoring Constitutional balance. Worthless Fredocons.] As I’ve previously written:
. . . Today, Congress does not solely wield the legislative power of our nation. Indeed, Congress is very far from even being the most important source of our legislation. Our nation now most clearly resembles the socialist regulatory bureaucracy of the EU, where mountains of regulations with the full force and effect of law are passed by unelected bureaucrats. In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of our modern [government by] regulatory bureaucracy [emphasis added].
Or as Justice Gorsuch wrote in his dissent to Gundy:
The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next? . . .
Our founding document begins by declaring that “We the People . . . ordain and establish this Constitution.” At the time, that was a radical claim, an assertion that sovereignty belongs not to a person or institution or class but to the whole of the people. From that premise, the Constitution proceeded to vest the authority to exercise different aspects of the people’s sovereign power in distinct entities. In Article I, the Constitution entrusted all of the federal government’s legislative power to Congress. In Article II, it assigned the executive power to the President. And in Article III, it gave independent judges the task of applying the laws to cases and controversies.
To the framers, each of these vested powers had a distinct content. When it came to the legislative power, the framers understood it to mean the power to adopt generally applicable rules of conduct governing future actions by private persons—the power to “prescrib[e] the rules by which the duties and rights of every citizen are to be regulated,” or the power to “prescribe general rules for the government of society.”The framers understood, too, that it would frustrate “the system of government ordained by the Constitution” if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals. Through the Constitution, after all, the people had vested the power to prescribe rules limiting their liberties in Congress alone. No one, not even Congress, had the right to alter that arrangement. As Chief Justice Marshall explained, Congress may not “delegate . . . powers which are strictly and exclusively legislative.” Or as John Locke, one of the thinkers who most influenced the framers’ understanding of the separation of powers, described it:
“The legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said we will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorised to make laws for them.”
Why did the framers insist on this particular arrangement? They believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty. An “excess of law-making” was, in their words, one of “the diseases to which our governments are most liable.” To address that tendency, the framers went to great lengths to make lawmaking difficult. In Article I, by far the longest part of the Constitution, the framers insisted that any proposed law must win the approval of two Houses of Congress—elected at different times, by different constituencies, and for different terms in office—and either secure the President’s approval or obtain enough support to override his veto. Some occasionally complain about Article I’s detailed and arduous processes for new legislation, but to the framers these were bulwarks of liberty”
Is it even possible to overestimate the genius and foresight of our Founders? Four members of the Supreme Court have now invited this nation’s litigators to send it a case raising the issue of the non-delegation doctrine. Let us hope they produce and soon.