While many Supreme Court cases present clear ideological fights, others are more mischievous. The most subversive cases tend to pit concerns over structure (the federal government versus the states, or the executive versus the legislature) against concerns over the civil rights of vulnerable people. Cases like those tend to produce strange bedfellows; they also may present opportunities for chronic dissenters to prevail. Those in the minority in civil-rights cases, for instance, might assemble a majority by joining those who want to limit federal power—and vice-versa.

But sometimes this approach backfires. Last week’s decision in Gundy v. United States is one such example. The Court’s four more liberal members traded away the rights of vulnerable people required to register as sex offenders, and did so to preserve the power of administrative agencies to wield delegated power. But the opinions themselves suggest that agency power remains on the chopping block—just not in a case involving this class of people.

Alas, we’ve seen this strategy fail before. Back in 2005, the Court’s four more liberal justices, joined by two anti-drug conservatives, chose expanded federal commerce authority over the rights of a terminally ill woman who needed marijuana to avoid excruciating pain and death. But the trade didn’t succeed: The two conservatives returned to federalism when the next major commerce clause case arrived, to nearly devastating results. The plaintiff’s individual rights were sacrificed, with little longterm gain. And in Gundy, history is likely repeating itself.

Gonzales v. Raich and the Commerce Clause

Angel Raich suffered from “from a host of painful wasting diseases, including fibromyalgia, endometriosis, scoliosis, uterine fibroid tumors, paralysis, asthma, and rotator cuff syndrome.” As if that weren’t enough, she also had “an inoperable brain tumor, seizures, and struggle[d] to consume enough calories to live.” She tried 35 different medicines to alleviate her conditions, and none of them worked. Her doctor even stated that without marijuana she might “suffer rapid death.”

Because Raich’s medicinal use was legal in California, she relied on two caregivers (both, coincidentally, named John Doe) “to provide her with locally grown marijuana at no charge.” Her co-plaintiff, Diane Monson, grew her own. But the DEA still wished to enforce the federal marijuana ban against them; the agency even raided Monson’s house and seized her marijuana plants. So Raich (joined by Monson) sued the Attorney General, arguing that Congress lacked authority under the Commerce Clause to apply the federal Controlled Substances Act against them.

Raich seemingly had the wind at her back. Over the previous decade, the Supreme Court’s conservative majority had issued a bushel of decisions limiting federal power—to enforce the Fourteenth Amendment, to abrogate state sovereign immunity, and, most infamously, to regulate interstate commerce. In 1995, a 5-4 majority decided United States v. Lopez, holding that Congress lacked authority under the Commerce Clause to ban gun possession in school zones. And in 2000, the same 5-4 majority issued United States v. Morrison, holding that Congress lacked Commerce Clause authority to create a federal civil remedy for victims of gender-motivated violence.

After these decisions, the liberal-learning U.S. Court of Appeals for the Ninth Circuit started taking the Supreme Court at its word and applied the Court’s Commerce Clause decisions to undo several federal criminal convictions. In United States v. McCoy, Judge Stephen Reinhardt—who spent the last two decades of his life as the most liberal federal appellate judge in the country—wrote a decision overturning, for want of commerce authority, a federal child pornography conviction based on a woman’s personal photo of her and her daughter. Later that year, another Ninth Circuit panel held that the Commerce Clause did not allow the federal government to prosecute “the mere possession of homemade machineguns.”

And then, in late 2003, the Ninth Circuit ruled in favor of Raich’s constitutional challenge. In particular, the panel held that she would likely succeed in her constitutional challenge because the Commerce Clause did not authorize the federal government to ban homegrown marijuana for private medicinal use.

But the Supreme Court took the case and then reversed the Ninth Circuit, holding that Congress could regulate Raich’s purely local, noncommercial activity because “the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety.” Writing in favor of that expanded commerce authority was Justice Stevens, joined by the Court’s other more liberal members (Justices Souter, Ginsburg, and Breyer) and two conservatives, Justices Scalia and Kennedy.

Justice Kennedy’s vote was easy enough to explain: Despite his usual federalist bent, he “has little tolerance, judicial or otherwise, for those who are users of drugs.” Justice Scalia likely shared those views, but his opinion concurring in the judgment arguably helped the Commerce Clause cause even more. Even when the regulated activity is not itself interstate commerce, he wrote, Congress has additional power under the Necessary and Proper Clause: “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” This led Raich’s lawyer Randy Barnett to taunt Justice Scalia as “a fair-weather federalist” and warn that Raich “has placed the future of the New Federalism in doubt.”

Barnett spoke too soon. The next big Commerce Clause case was National Federation of Independent Business v. Sebelius—the infamous challenge to the Affordable Care Act’s individual mandate (which required Americans to get a certain level of health insurance or make a “shared responsibility payment” as part of their taxes). Although Chief Justice Roberts joined the four more liberal justices to uphold the individual mandate as a tax, he joined the other conservatives—including Justices Scalia and Kennedy—in ruling that the individual mandate was beyond Congress’s authority under the Commerce Clause.

With Justices Scalia and Kennedy back in the federalism fold, Raich’s pragmatic approach, which allowed federal regulation of purely local, non-economic activity, yielded to a formalistic line between activity and inactivity, notwithstanding the mandate’s importance to reforming one-seventh of the American economy. And Justice Scalia, who had written separately in Raich to discuss how the Necessary and Proper Clause expands the commerce power, specifically rejected the government’s Necessary-and-Proper defense of the individual mandate. Raich turned out to be a blip.

So Angel Raich got no relief from the Court’s more liberal wing, which voted to prolong her suffering and sacrifice her health, comfort, and peace-of-mind in the hopes of restoring the federal commerce power. But this Commerce Clause renaissance was inevitably doomed. Once drugs left the picture—and once a major social-welfare program entered it—Justices Scalia and Kennedy were back to their old ways.

Gundy v. United States and Nondelegation Doctrine

Last week, we saw another attempted bargain—a bargain that, unlike in Raich, unraveled in real time. In Gundy v. United States, the four more liberal justices voted to sustain retroactive application the Sex Offender Registration and Notification Act (SORNA). SORNA created a new federal crime, punishable by up to ten years in prison, for those who fail to register as a sex offender as required and travel in interstate commerce.

The defendant in Gundy argued that Congress improperly delegated to the Attorney General the ability to decide whether SORNA applied to those who were convicted of sex crimes before the statute was enacted. That, anyway, is the most natural reading of the law: SORNA states that “the Attorney General shall have the authority to specify the applicability of [the law’s requirements] to sex offenders convicted before” its enactment. The defendant, represented by the Federal Defenders of New York, was not attempting to vaporize the administrative state. Instead, he argued that SORNA’s delegation was unique, because it gave the nation’s chief prosecutor unfettered discretion to interpret one of the criminal laws that he enforces.

Because the case was argued before Justice Kavanaugh joined the bench, only eight justices decided it. A quartet led by Justice Kagan (and joined by Justices Ginsburg, Breyer, Sotomayor) reimagined SORNA to itself require retroactive application and to direct the Attorney General merely to implement its mandatory retroactive application “as soon as feasible.” And if the statute delegates only a narrow question of implementation logistics, Justice Kagan wrote, “[t]hat delegation easily passes constitutional muster.”

By reinterpreting the statute and then upholding the delegation, the liberal plurality dealt Gundy and company an especially harsh deck. Sex-offender registration torments those convicted of sex crimes and, in most cases, actually increases the risk of recidivism. Yet the Kagan plurality exposed certain sex offenders to yet another ten-year penalty for violating a registration law—and did so after interpreting SORNA to be maximally harsh—out of concern for preserving the administrative state against a reinvigorated non-delegation doctrine. They were joined, in the result only, by Justice Alito, who rules against criminal defendants in nearly every case.

A necessary compromise to save agencies’ ability to govern? Perhaps. From Justice Kagan’s perspective, “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.” But this plurality opinion is unlikely to save the administrative state.

Indeed, Justice Alito’s three-paragraph ditty concurring in the judgment left little to the imagination. He complained that “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.” And he promised that “[i]f a majority of this Court we’re willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Meanwhile, Justice Gorsuch’s dissent previewed what’s to come. Although parts of his dissent focused on the unique circumstance of allowing “the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing,” his analysis also transcended both criminal law and the uniquely broad and punitive delegation in this case. Stressing that “the framers went to great lengths to make lawmaking difficult,” he proposed to constrain Congress’s ability to delegate residual authority to agencies—allowing Congress to delegate factfinding, but nothing else. In so doing, the dissent “called into question the whole project of modern American governance.”

Justice Gorsuch added that “Justice Alito supplies the fifth vote for today’s judgment and he does not join either the plurality’s constitutional or statutory analysis, indicating that he remains willing, in a future case with a full Court, to revisit these matters.” Next time, with Justice Kavanaugh sitting and Justice Alito on board, they’ll have the votes.

In both Raich and Gundy, the Court’s more liberal minority saw unique opportunities to preserve federal government authority by wooing at least one conservative justice to join harsh rulings against especially vulnerable parties. The ad hoc majority in Raich didn’t hold under pressure. And the quasi-majority in Gundy is already crumbling. Needless to say, these deals are getting worse all the time.

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