//  6/22/19  //  Commentary

It’s not surprising that several dissenting justices launched a broadside against congressional delegation of power — the linchpin of administrative government — in Gundy v. United States. After all, the Supreme Court had granted certiorari to determine whether the delegation of authority in Gundy was constitutional, despite the fact that the Court hasn’t struck down a delegation since 1935 and despite the lack of any split among the circuit courts on the specific question raised by Gundy. Something was clearly afoot.

It’s also not surprising that Justice Gorsuch penned this attack, or that he was joined by Justice Thomas. Both Justices have been open about their radical anti-administrative views. It’s not even surprising that Justice Alito, despite siding with the plurality in Gundy, signaled his willingness to reconsider the Court’s approach to delegation in the future.

What’s surprising? That Chief Justice Roberts joined them.

Much has been written in recent months about Roberts’ concern to protect the Supreme Court’s institutional legitimacy, as well as his legacy as Chief Justice. Roberts pointedly rejected President Trump’s description of the federal judiciary in crass political terms, and has resisted efforts by the conservative bloc to quickly roll back protections for the right to choose. And it was Roberts who back in 2012 broke from the conservatives to uphold the constitutionality of the Affordable Care Act in NFIB v. Sebelius — according to a recent biography, changing his initial vote out of concern for the institutional costs to the Supreme Court of striking down the most important social welfare legislation in a generation. 

Yet in Gundy, the Chief signed onto a dissenting opinion with a disruptive potential far beyond invalidating the ACA. All administrative government rests on delegations of power from Congress. And these delegations are typically broad, reflecting the need for flexibility and expertise in responding to the complex regulatory problems that confront societies today. According to the dissenters in Gundy, however, Congress cannot delegate any policy judgments to administrative agencies to make — even if Congress provides an overall guiding principle for agencies to follow. Under that view, as Justice Kagan said, “most of Government is unconstitutional.” Moreover, the dissent’s attack on delegation is deeply political, reflecting a many-year effort by conservative and libertarian interests to push back on federal regulation.

To be sure, Chief Justice Roberts has shown antipathy to administrative government in the past. In City of Arlington v. FCChe warned of the “growing power of the administrative state” and his account of “hundreds of federal agencies poking into every nook and cranny of daily life” is as good judicial bureaucracy-bashing as it gets. But Roberts made clear there that he was not questioning agencies’ “broad power to give definitive answers to questions left to them by Congress,” only insisting that courts make sure Congress made such a delegation. The dissent in Gundy goes significantly further in denying Congress the power to delegate in the first place.

Let there be no doubt, Congress is a big loser under the Gundy dissent’s approach. Although Justice Gorsuch casually dismissed claims that curtailing delegation would harm Congress’s ability to function, nearly a century (and more) of actual governing experience proves him wrong. In past high profile cases, Chief Justice Roberts has been Congress’s defender, insisting on reading statutes in a way that makes them constitutional and respects Congress’s plan. A similarly respectful reading that easily addressed any constitutional concerns was available in Gundy — indeed, that reading was compellingly laid out in Justice Kagan’s plurality opinion. But the Chief instead signed onto an opinion that went out of its way to read the delegation at issue to be unconstitutional.

In short, in Gundy Chief Justice Roberts joined an extreme opinion that threatens to disrupt a basic and longstanding feature of modern government, unnecessarily undercuts a co-equal branch’s ability to function, and clearly advances a strongly partisan anti-regulatory agenda. It may be that joining the Gundy dissent doesn’t signal much about how the Chief will rule on future delegation challenges. Not only was it a dissent, but the delegation at issue was unusual in its criminal law focus and retroactive aspects. How far the Chief Justice is willing to go in attacking administrative government or sanctioning political moves in the administrative realm will be clearer next week, when big-ticket decisions on deference to administrative regulatory interpretations and the census citizenship question come down. Still, if Gundy is any sign of things to come, John Roberts the institutionalist has left the building.

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Since 2015, lawsuits by the House of Representatives have been authorized not by a vote of the full House but by majority of a standing, 5-member committee. Is this structure constitutional?

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12/19/19  //  Commentary

Senators who vote on removal following impeachment trials must take an oath akin to that of a juror. The oath requires them to be impartial and vote regardless of the president's party affiliation. Will Senators do that here?

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

The Contempt of William G. Barr

11/22/19  //  Commentary

Attorney General Barr recently said that "the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law." Barr's outright partisanship relies on misunderstandings of history and a misguided view of the role of the attorney general.

Peter M. Shane

Ohio State, Moritz College of Law