Gundy v. United States, which the Supreme Court will hear on Tuesday, is simultaneously one of the easiest cases the Court will hear in its newly begun term, and one of the most dangerous cases on its docket.
The law at issue in the case, a provision of the Sex Offender Registration and Notification Act (SORNA), earned criticism from both Justice Ruth Bader Ginsburg and Neil Gorsuch — arguably left and the right flanks of the current Court. It is unlikely that this particular provision will survive.
But, as is so often the case in the Supreme Court, the question of how the Court writes an opinion striking down this one provision of SORNA matters a whole lot more than the question of whether they do so. Gundy could easily be remembered as a one-off case disposing of a single, poorly drafted provision of law. It could also be remembered as a earthquake that upends much of the federal government and throws offices like the Environmental Protection Agency into complete and utter chaos.
Ginsburg will undoubtedly prefer the first outcome. Gorsuch, as is his want, will likely try to do maximal damage to the federal government. Which one of them ultimately prevails will tell us a great deal about how the Supreme Court is likely to behave as Republicans consolidate control over the judiciary.
Gundy involves a largely defunct legal doctrine known as “nondelegation,” which briefly reared its head during the Franklin Delano Roosevelt administration and then quickly faded away.
Many federal laws lay out a broad policy that Congress hopes to achieve, then delegates the task of implementing that policy, providing federal agencies with detailed guidance on how to go about achieving the law’s desired aim. One provision of the Clean Air Act, for example, requires certain power plants to achieve the same reduction in emissions that could be reached by “the best system of emission reduction” that is both technologically feasible and cost-effective. The task of determining what this “best system” is — and of updating this determination as technology improves — is delegated to the Environmental Protection Agency.
Congress’ power to delegate authority in this way, while quite broad, is not entirely limitless. Eighty-three years ago, in A. L. A. Schechter Poultry Corp. v. United States, the Supreme Court struck down a New Deal era law that gave President Roosevelt sweeping power to impose “codes of fair competition” on various industries. Indeed, the power delegated to Roosevelt was so broad that, at least according to the Supreme Court, the president’s discretion to regulate industry was “virtually unfettered.” Such a near-limitless delegation of lawmaking power is not allowed under the Constitution.
This notion, that there are limits on Congress’ power to delegate authority to the executive, is known as the “nondelegation” doctrine.
Since Schechter Poultry, however, the Supreme Court’s made clear that the nondelegation principle applies only in truly egregious cases. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform,’” the Court explained in Mistretta v. United States, “‘such legislative action is not a forbidden delegation of legislative power.’”
Gundy, however, may be that rare case where Congress gave so little guidance to a federal agency that it violated the nondelegation principle. SORNA requires certain sex offenders convicted after the law took effect in 2006 to register “in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” A separate provision of SORNA provides that “the Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.”
This second provision is at issue in Gundy. The Justice Department issued a sweeping rule requiring all sex offenders to register, regardless of the date of their conviction, but it did so pursuant to a provision that lacks an “intelligible principle” that DOJ can use to decide which older offenders should be subject to SORNA.
As the late Justice Antonin Scalia wrote in a dissenting opinion, the provision of SORNA at issue in Gundy sails “close to the wind with regard to the principle that legislative powers are nondelegable.” Notably, Justice Ginsburg joined this dissent.
Enter Neil Gorsuch
So Gundy should be an easy and insignificant case. In drafting SORNA, Congress appears to have committed a rare violation of an obscure constitutional doctrine. And there appears to be bipartisan agreement that this is the case.
Yet Gundy is also a dangerous case because it gives the Court’s right flank a vehicle it could use to radically limit federal power.
In 2015, federal appellate Judge Neil Gorsuch criticized the very provision of SORNA that is now before the Supreme Court. Along the way, he suggested expanding the nondelegation doctrine in ways that would make it nearly impossible for the United States to have very basic environmental laws, among other things.
In his 2015 opinion, Gorsuch gave a handful of examples of what he views as permissible delegations of power from Congress to the executive. If Congress provides “that margarine manufacturers must pay a tax and place a stamp on their packages showing the tax has been paid,” Gorsuch wrote, “Congress may leave to the President ‘details’ like designing an appropriate tax stamp.” Similarly, Congress could provide that certain restrictions on an industry may be triggered by a “factual finding by the President.”
But it is far from clear that Gorsuch would allow federal agencies to do much more than do graphic design or make narrow fact findings. It is very far from clear, for example, that he would let EPA determine what is “the best system of emission reduction” that must be used by certain power plants.
There is, in other words, an easy way to decide Gundy, and a hard way. There is a way that has very few implications for future cases, and there is a way that could destroy much of the federal government’s ability to function.
Which path the Court’s Republicans pick in this case will give us a very good window into how aggressively they plan to reshape the law if someone like Brett Kavanaugh joins their ranks.