Courts

The Supreme Court Drew Its Wall Battle Lines In Gundy v. U.S.

The fight over non-delegation doctrine is so real and I'm here for it.

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(Photo by Justin Sullivan/Getty Images)

When it comes to judicial decision-making, I’m basically an Attitudinalist. I have my political ideology; I impose that ideology in a fact specific way; I interpret the law, where possible, so that it works in concert with my ideology and against the ideology of my enemies.

I believe that the overwhelming majority of judges do it the way I do it. They just don’t like to admit that’s what they’re doing, because it makes roughly half of the Senators angry during their confirmation hearings. So they make up other philosophies to disguise their beliefs. To my view, “originalism” is just the right wing’s way of imposing the white supremacist ideology of the Founding Fathers in a way that is soothing to people who don’t think themselves to be white supremacists.

A case like Gundy v. U.S. is absolutely freaking fascinating when viewed through an attitudinal lens. It’s easily going to be the most interesting case this term, and potentially the most important — depending on whether Chief Justice John Roberts decides to promote white supremacy in the Census or not.

At issue… well, that’s the thing. What you think was “at issue” here really defines how you think about the case. For Herman Gundy, at issue is how much more time he needs to be in jail. Gundy is a convicted child rapist who was released, then re-arrested while living in a halfway house for failure to register as a sex offender.

The problem is that the Sex Offender Registration and Notification Act (SORNA) came out in 2006. Gundy committed his crime in 2004. For “pre-act” crimes, Congress left it up to the Attorney General to decide if, when, or how these prior sex offenders were to be registered. Gundy argued that this was an unconstitutional delegation of Congressional authority to the executive branch. Non-delegation doctrine was the issue the Supreme Court took up. (Disclosure: I’m personal friends with the lawyer who argued Gundy’s case in front of the Supreme Court, and her stupid husband.)

See, I already don’t know who I want to win! On the one hand, Gundy is a vile child rapist. On the other hand, I generally think the sex offender registry is an unconstitutional punishment, and re-punishing this man for failure to comply when complicity itself was a bit up in the air is cruel. But I’m a liberal, so I take a very blasé view to non-delegation doctrine. I generally think the experts at the executive agencies should have broad leeway to do Congress’s job for them, because Congress is trash and politicians rarely know what they’re doing.

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But that was before WALL. Wall changes everything. Now, with Trump trying to usurp Congress’s spending authority to build Wall, I care about non-delegation doctrine a great deal. If burning Gundy at the stake would stop Wall, I would do it. If letting Gundy crash in my guest room would stop Wall, I would do that. Wall must be stopped.

Today’s decision was 5-3 against Gundy (Brett Kavanaugh took no part, as the case was argued a few days before we had our first alleged attempted rapist Supreme Court justice). Justice Elena Kagan wrote for the majority, Neil Gorsuch wrote the dissent, and Samuel Alito wrote a one-paragraph concurrence the in the judgment which came as close as he could to saying “f**k all of you.”

You can see the justices wrestling with how to stay true to their ideological preferences here, but leave themselves outs to, you know, completely reverse themselves if the national emergency lawsuits ever make it to the Supreme Court.

Kagan starts by laying out how this case is an exceedingly simple application of long-standing precedent:

“[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.”

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The “intelligible principle” ends most non-delegation inquiries, and does so here. But Kagan talks about a broader test which I promise we’ll be hearing about, should the National Emergencies Act ever make it to her desk:

This Court has long refused to construe words “in a vacuum,” as Gundy attempts. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”… That non-blinkered brand of interpretation holds good for delegations, just as for other statutory provisions. To define the scope of delegated authority, we have looked to the text in “context” and in light of the statutory “purpose.” National Broadcasting Co. v. United States, 319 U. S. 190, 214, 216 (1943) (internal quotation marks omitted); see American Power & Light, 329 U. S., at 104 (stating that the delegation at issue “derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context”). In keeping with that method, we again do so today.

That’s Kagan essentially saying that non-delegation doctrine isn’t really an issue unless Congress stupidly grants the president the powers of a dictator if he clicks his heels and says “national emergency” three times.

But two can play at that game. In dissent, Neil Gorsuch does his originalist thing, giving everybody the AP History lesson nobody asked for about the founding and James Madison and whatever else he divined from his time machine nobody else has access to. But the heart of his dissent is this:

This mutated version of the “intelligible principle” remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked. Judges and scholars representing a wide and diverse range of views have condemned it as resting on “misunderst[ood] historical foundations.”61 They have explained, too, that it has been abused to permit delegations of legislative power that on any other conceivable account should be held unconstitutional. Indeed, where some have claimed to see “intelligible principles” many “less discerning readers [have been able only to] find gibberish.” Even Justice Douglas, one of the fathers of the administrative state, came to criticize excessive congressional delegations in the period when the intelligible principle “test” began to take hold.

You can’t really overstate how dangerous and revolutionary this paragraph will be if it eventually wins the day. Overturning the “intelligible principle” standard, which Kagan correctly explains is the well-settled principle at issue, is Gorsuch’s way of neutering the power of all executive agencies. If you like things like environmental or energy regulations, this is how you lose them. Gorsuch is coming for one of the most essential law-making functions in the United States.

Unless it displeases Donald Trump. Gorsuch gives his apparent boss an out in the very next paragraph:

Still, the scope of the problem can be overstated. At least some of the results the Court has reached under the banner of the abused “intelligible principle” doctrine may be consistent with more traditional teachings. Some delegations have, at least arguably, implicated the president’s inherent Article II authority. The Court has held, for example, that Congress may authorize the President to prescribe aggravating factors that permit a military court-martial to impose the death penalty on a member of the Armed Forces convicted of murder—a decision that may implicate in part the President’s independent commander-in-chief authority.64 Others of these cases may have involved laws that specified rules governing private conduct but conditioned the application of those rules on fact-finding—a practice that is, as we’ve seen, also long associated with the executive function.

You can see the game he is playing at. The current interpretation of non-delegation doctrine has “no basis” in the original Constitution, but if Congress delegates (or, perhaps, if the president usurps) powers that are kind of like powers the Constitution already gives him, it’s cool.

This is potentially how Gorsuch will justify letting the president build his Monument to Bigotry. Congress can’t delegate its essential legislative functions, but it can delegate “fact finding” — like a declaration of a national emergency. If that “fact” means that Congress loses its essential legislative functions on the president’s say-so, Gorsuch is going to find a way to get to yes on that.

That’s the line along which the national emergencies case will be fought. Gorsuch will turn hypocrite and claim that he’s not; Kagan will flip-flop and claim that she’s not. Everybody will act like that National Emergencies Act is so very different from the Sex Offender Registration and Notification Act, and we’ll play our game anew.

At least Justice Alito comes by his attitudinalism more honestly. Alito is absolutely on Gorsuch’s side in this fight, and yet he concurred in the judgment, providing the liberals with the fifth vote. Why? He just hates child rapists is all.

Here’s his concurrence, in full:

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid.

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment. Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

Right, Alito is all for destroying the power of federal agencies. But, with Kavanaugh not participating this time, he didn’t have the votes to do it. So, instead, might as well make sure that Herman Gundy get re-punished for crimes. That’s always the kind of petty cruelty Alito goes in for.

If you’re Herman Gundy, that has to be what stinks the most. The conservatives, of all people, actually AGREE with your argument. If Brett Kavanaugh had been seated on the Court just a few days earlier, you almost certainly would have won. Gundy likely doesn’t care about this legalese fight about the future of executive agencies, or Trump’s wall. He just wants justice. And he didn’t get it really, because the eight final arbiters in his case were busy fighting about their own bulls**t.

Gundy is a casualty. If Gorsuch ultimately gets his way, there will be many others.

Gundy v. U.S. [Supreme Court]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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