Alito's Strategic Vote Signals Reining In of 'Law by Regulation'
Article I, Section 1, Clause 1 of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress,” which means that legislative decisions have to be made by Congress and cannot be delegated to the other branches of government (and certainly not to private individuals). This “non-delegation doctrine” is a core aspect of the Constitution’s separation of powers, but for more than three-quarters of a century, we’ve been living under a “law by regulation” administrative state that finds little support in the Constitution. Congress has delegated large swaths of its lawmaking power to unelected and unaccountable executive and even “independent” agencies. The Supreme Court has held that these delegations of lawmaking power are permissible as long as Congress provides an “intelligible principle” constraining the discretion of the regulatory agency, but it has upheld delegations with the flimsiest of vague guidance — “regulate in the public interest,” for example — that provide no principle at all, much less an intelligible one.
In recent years, a number of justices have begun to question whether these delegations (and the Supreme Court decisions approving them) violate basic separation-of-powers principles. For example, in his opinion concurring in the judgment of the 2015 decision in Department of Transportation v. Association of American Railroads, Justice Clarence Thomas explicitly urged the court to revive the non-delegation doctrine. This term, the Supreme Court took up a case, Gundy v. United States, where the question presented asked the court to do precisely that: “Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. [section] 16913, violates the nondelegation doctrine.” Herman Gundy had been convicted of a sex offense before the registration act was passed, and he took issue with Congress’s delegation of power to the attorney general to “specify the applicability” of the registration requirement to “sex offenders convicted before” the act was adopted.
Gundy lost his case last week, but not because the court rejected Thomas’s invitation to revive the non-delegation doctrine. Rather, he lost because Justice Brett Kavanaugh was recused from the case, and rather than casting a vote in line with his own previously expressed views on the subject (“The principle that Congress cannot delegate away its vested powers exists to protect liberty,” he noted in the American Railroads case), Justice Samuel Alito concurred in the judgment against Gundy, providing the necessary fifth vote to Justice Elena Kagan’s plurality opinion upholding the delegation of authority in this particular case.
To understand how strategic a vote that was, a little inside-baseball background is required. When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided” court.” In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case. Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent. But neither would it have been a majority, because of Kavanaugh’s recusal. Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day. Indeed, the public would not even know what the actual line-up of the justices was, as the perfunctory affirmance by an equally divided court doesn’t even list which justices were on which side of the divide, much less their reasons.
Yet Alito left no doubt where he stands on the matter. Significantly, he did not join Kagan’s opinion (thereby making it only a plurality opinion), but concurred only in the judgment, noting that he could not say the statute lacks a “discernible standard that is adequate” to support the delegation “under the approach this Court has taken for many years.” But he added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” In a case in which Kavanaugh is not recused, there is likely to be the necessary majority to undertake the very reconsideration that Alito said he would support. Kavanaugh’s tenure on the D.C. Circuit was marked, after all, by a strong devotion to separation-of-powers principles, and there is no separation of powers principle more basic than the non-delegation doctrine. So I say to the non-delegation doctrine, “Welcome back!”