Non-delegation very slippery slope
June 26, 2019
The Supreme Court last week made a decision whose minority opinions matter more to the future of federal, state and local government than the majority opinion that prevailed.
That’s because one of the justices who upheld the majority signaled he would be willing to hear challenges to a principle that could render most of the government regulations written since 1935 unconstitutional.
Under that principle, called “non-delegation,” Congress is supposed to be prohibited from passing laws, then transferring the power to the executive branch to essentially legislate further by writing regulations.
It’s not quite that simple, but that’s the gist of the argument.
The Supreme Court has apparently ignored non-delegation, more or less, since about 1935, according to SCOTUSblog, a newsletter that tracks Supreme Court action.
Justice Samuel Alito, who voted with the majority, wrote in his opinion, “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years (ignoring non-delegation), I would support that effort.”
In the case that raised this question last week, the majority of the court held that a sex offender who committed his crime before the sex offender registry act became official in 2006 must still register, because the attorney general’s subsequent rules said so.
The offender had argued that the law gave the attorney general more power than Congress should have allowed to decide who has to register.
I don’t think the court’s conservatives intended to support a sex offender, but a minority opinion from Justice Neil Gorsuch said non-delegation should have been applied and the sex offender act should have been declared unconstitutional.
Gorsuch said Congress’ power to delegate rule-writing to federal agencies should be far more limited than it is. Chief Justice John Roberts and Justice Clarence Thomas agreed, with Alito signaling his openness to future challenges based on non-delegation.
Justice Brett Kavanaugh, the one most likely to have a sensitivity to sex offenses, recused himself because the court heard arguments on this case before he joined.
In her majority opinion, however, Justice Elena Kagan observed that if the law that applies to the sex-offender case is unconstitutional because it violates non-delegation, then “most of government is unconstitutional.”
Non-delegation sounds like a recipe for limits on both legislative and executive power.
How one feels about that, of course, depends on how one feels about congressional versus executive power, which changes based on which party holds which branch.
I think it’s even more interesting because of how non-delegation could trickle down to state legislatures and governors, and even local city legislative and executive bodies.
Non-delegation increases the burden on legislators to commit details to original legislation and leaves less discretion to executives.
Trump nominee Gorsuch gave no comfort to Trump conservatives, however, because he warns that leaving too much legislative authority to executive branch regulators would “invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”
Isn’t that the situation we have now?
Steve Hansen writes about our life and times from his perspective of a semi-retired Tucumcari journalist. Contact him at: