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1/ Belated thread on Gundy v. US. I plan to teach this case in class when I cover the non-delegation doctrine. The Gorsuch dissent provides a thorough overview of the doctrine from CJ Marshall to the New Deal to the present. #SCOTUS
2/ Alito's decision to concur in judgment made the vote 5-3. Had Alito went along with Gorsuch, the vote would have been 4-4, and the lower court would have been affirmed by an equally-divided margin. In such a case, Gorsuch would not have been able to write a separate opinion.
3/ Alito probably cringed at joining an opinion that would declare unconstitutional regulations that punish sex offenders. But here, he took one for the team, and in the process, signaled that he would reconsider reviving the non-delegation doctrine in an appropriate case
4/ J. Gorsuch's dissenting opinion is remarkable. He demonstrates, as a matter of first principles, how current doctrine has strayed so far from the Constitution's original meaning. There are many cites to the Federalist, Locke, and other seminal sources.
5/ Gorsuch also articulates why the framers added these structural provisions to the Constitution: to protect individual liberty. "The framers went to great lengths to make lawmaking difficult." This passage echoes Scalia's concurrence in Noel Canning
6/ Delegation of legislative authority frustrates political accountability: "Legislators might seek to take credit for addressing a pressing social problem by sending it to the executive for resolution." This argument presents the mirror image of accountability issue in NY v. US
7/ Next, Gorsuch sketches three "guiding principles" of where delegations are permissible. First: Congress can authorize the other branches to "fill up the details."
8/ Second, Congress can "make the application of that rule depend on executive fact-finding" That is, the meaning of a rule can turn based on facts that the President finds.
9/ Third, Congress can delegate non-legislative responsibilities: "when a congressional statute confers wide discretion to the executive, no separation-of-powers problem may arise if 'the discretion is to be exercised over matters already within the scope of executive power.'"
10/ I wrote about this 3rd exception at great length during the travel ban litigation. I argued that Section 1182(f) would violate the non-delegation doctrine, but for the fact that the President has the Article II power to deny entry to aliens. Therefore, the statute was valid
11/ See my @lawfareblog post from 2018: lawfareblog.com/travel-ban-art… A 4th Circuit judge actually cited Panama Refining favorably to say that 1182(f) violated the non-delegation doctrine. I wrote that under current doctrine 1182(f) had an intelligible principle.
12/ But, I added that "I would relish the court’s reinvigorating the nondelegation doctrine." Plus, "If the court wants to breathe life into Panama Refining and Schechter Poultry, let it start with a mundane statute." I mentioned Gorsuch by name. Gundy is that case.
13/ Gorsuch's Gundy dissent reaffirms my approach to the travel ban litigation, from start to finish. I'm very glad to see it.
14/ Gorsuch also offers an accurate description of Schechter Poultry, w. a cite to @AmityShlaes. The New Dealers were harassing Kosher butchers. The "Straight Killing" rule made it impossible to select sick, non-kosher, chickens. @RandyEBarnett and I offer this description
15/ Gorsuch also casts subtle shade on the post-New Deal cases that killed the non-delegation doctrine, which was a "case of death by association" with "now-discredited substantive due process decisions."
16/ Gorsuch refers to the modern-day "intelligible principle" doctrine as "mutated." Citing Gary Lawson, the courts can uphold delegations that read like "gibberish" (He used similar language in Kisor--"zombified")
17/ True enough, #SCOTUS has not found a violation of the non-delegation doctrine since 1935. But "When one legal doctrine becomes unavailable to do its intended work, the hydraulic pressures of our constitutional system sometimes shift the responsibility to different doctrines."
18/ Here, Kavanaugh cites McDonald v. Chicago for the proposition that the Court incorporated the 2nd Am through Due Process, rather than Privileges or Immunities. Alito and Roberts admitted as much in McDonald, but good of Gosuch to state it expressly.
19/ Gorsuch explains that the Court still reins in unlawful delegations, but by "different names." Example 1- the "major questions" doctrine, which is applied "in service of the constitutional rule that Congress may not divest itself of its legislative power"
20/ I made this precise point in @HarvLRev following King v. Burwell adn Zubick: the major question doctrine is but a means to avoid finding an unlawful delegation of authority. papers.ssrn.com/sol3/papers.cf…
21/ Example 2- Vagueness doctrine. Though superficially grounded in the 14th Am, a vague statute reflects a statute that does not enable the public to ascertain its meaning.
22/ Gorsuch described this concept in Davis: "In our constitutional order, a vague law is no law at all." It is not a law, because Cong delegated lawmaking powers to the executive branch, and ultimately to the courts. It is unlawful, as a matter of Due Process, and non-delegation
23/ Is Gorsuch a friend of federal criminal defendants? In some contexts, at least. Gorsuch's enemy is the administrative state. Federal criminal defendants likewise see the administrative state as their enemy. And, the enemy of my enemy is my friend.
24/ Example 3 - Gorsuch casts seminal separation-of-powers cases as non-delegation challenges in different garb. For example, Chadha, Clinton v. NY, and PCAOB. In other words, the Court routinely sets aside improper delegations, but refuses to use the correct lingo.
25/ Gorsuch closes: "In a future case with a full panel" (that means Kavanaugh) "I remain hopeful that the Court may yet recognize that [Congress] may never hand off to the nation’s chief prosecutor the power to write his own criminal code." I can't wait to teach this case!
26/ @threadreaderapp unroll
27/ Here is the thread, unrolled: threadreaderapp.com/thread/1144107…
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