The risks and rewards of this conservative Supreme Court

Amidst the drama over the last several weeks surrounding the confirmation of Brett Kavanaugh to the Supreme Court, the justices quietly went back to work as it does every October. First on the docket was an oral argument in Herman Gundy v. United States, a case that offers the American public a different perspective on why the battle to replace Justice Anthony Kennedy was fought at such a high pitch.

In Gundy, the defendant is challenging the delegation of policymaking authority by Congress to the attorney general to implement the Sex Offender Registration and Notification Act, specifically, to determine when the statute should apply to individuals who committed particular crimes prior to its enactment. The constitutionality of a legislative delegation of policymaking authority is not the kind of issue that typically attracts the attention of pundits and politicians. But Gundy suggests why some conservative groups were so keen to see Kavanaugh confirmed. It foretells some of the risks the Supreme Court may face when it is asked to more strictly enforce the nondelegation doctrine.

{mosads}Nearly a century old, the nondelegation doctrine holds that, given the intricacies of federal regulation, Congress has latitude to delegate the details to the executive branch, so long as it provides the executive with an intelligible principle to guide the effort. Underlying the doctrine is the textual allocation in the Constitution of lawmaking authority to Congress. It follows that Congress cannot avoid the accountability associated with lawmaking by giving that power away.

The nondelegation doctrine makes sense, as far as it goes, and it has had staying power. But in no modern case has the Supreme Court found a legislative enactment to violate the nondelegation doctrine. The defendant in Gundy maintains that the Sex Offender Registration and Notification Act is different because it explicitly empowers the chief federal law enforcement officer to define the consequences of particular criminal acts absent any real guidance from Congress.

Should a majority of the court be receptive to this argument, it would open the door to challenges of similar legislative enactments. At oral argument, counsel speculated that the number of such enactments could run into the thousands. The lower federal courts would then have to try and distinguish those instances in which Congress provided the executive appropriate guidance from those in which it has not.

Many of these future challenges would be motivated, at least in part, by skepticism about the necessity of federal regulation at all in particular areas of American life. Among the groups that submitted amicus briefs supporting the defendant in Gundy were the Cato Institute and the Competitive Enterprise Institute, each looking to persuade the court that the judiciary should more actively police delegations by Congress. Indeed, should the defendant prevail, one result could be less regulation, in the form of a rule that requires members of Congress to agree on the regulatory details of matters that are often arcane and complicated is likely to deter the impulse to regulate in the first place.

Of course, a decision in Gundy that invites more delegation challenges may not be good for the Supreme Court, whose legitimacy in the eyes of the public depends on the extent to which the reasons for its decisions are both plausible and persuasive. In this light, it may be impossible, as the late Justice Antonin Scalia observed in an earlier nondelegation case, for the high court to satisfactorily explain why some of the guiding principles of Congress are acceptable and others are not.

It has become a commonplace notion that Republicans seek to move the Supreme Court to the right. Given the skepticism Kavanaugh expressed about the regulatory authority of executive agencies while a member of the federal court of appeals, his appointment to the Supreme Court may yield a majority that has fewer doubts than Scalia did about the ability of the judiciary to apply the nondelegation doctrine. The Senate did not confirm him in time for the oral argument in Gundy, but the challenge in that case is a reminder that there was more at stake in this nomination than the disposition of high profile issues like the right to choose.

Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”