Justice Samuel Alito joined with his four liberal colleagues on the Supreme Court in the case of Gundy V. U.S. giving a 5-3 ruling.
The case involved Herman Gundy, a convicted sex offender. More on Gundy in a minute.
But in his concurrence with the liberal justices, Alito indicated that, with the right case, he might be willing to strike a blow at what we have come to call the administrative state.
The administrative state was born of Congress’ delegating decision making (law making, really) to federal agencies. The Framers of the Constitution meant for Congress to make laws.
John Marini, a scholar of the administrative state, has explained how this works in a book entitled Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century.
Here is how a Wall Street Journal oped by David Rivkin and Lee Casey sets the stage for analyzing Justice Alito’s concurrence in the Gundy case:
The Constitution’s first clause after the Preamble states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since 1935 the justices have ignored that provision and permitted lawmakers to delegate their authority to the executive branch.
At issue in this case was a provision of the Sex Offender Registration and Notification Act of 2006, or Sorna, that directed the attorney general to “specify the applicability” of the law’s registration requirements to offenders, like Herman Gundy, whose crimes predated the act. Mr. Gundy, who was sentenced to 10 years in prison for failing to register, claimed this delegation was illegitimate.
The case was heard four days before Justice Brett Kavanaugh’s confirmation. Had Justice Alito dissented, the resulting 4-4 split would have upheld the lower court’s ruling against Mr. Gundy without any opinion being issued.
Instead, Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “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.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.
In their quest to control governmental power and protect individual liberty, the Framers separated federal power among three branches of government. As Justice Gorsuch notes, they also “went to great lengths to make lawmaking difficult,” requiring consent of both houses of Congress and the president, or legislative supermajorities. The veto was the executive branch’s only role in the legislative process.
That was deliberate. Justice Gorsuch quotes Montesquieu, who was quoted by James Madison in Federalist No. 47: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”
According to Rivkin and Casey, the Supreme Court was scrupulous in preserving the balance of power set forth in the Constitution until the New Deal, when the Court ruled that delegation is permissible when there is “an intelligible principle” for doing so.
Herman Gundy is an appalling character. But the issue at hand is the power of bureaucrats to, in effect, make and enforce the law. Rivkin and Casey explain:
Gundy offered an excellent opportunity to begin reasserting the original constitutional design.
Sorna’s delegation of power was extreme. While setting up an elaborate registration system for sex offenders convicted after its enactment, the law granted the attorney general “authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.”
A single official in the executive branch was given the power to impose requirements carrying severe criminal penalties on more than 500,000 Americans, and then to carry them out.
We don’t have to have any sympathy for Gundy to be uneasy at the power of the administrative state over all our lives.