“On Thursday, the conservative wing of the Supreme Court called into question the whole project of modern American governance.” So opens an op-ed of mine at the New York Times.
Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.
So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else.
Nothing in the Constitution requires that result. The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.
That argument, however, may not carry the day. And make no mistake: If the law in Gundy is unconstitutional, then as Justice Kagan wrote, “most of government is unconstitutional.” Alarmingly, a majority of justices on the Supreme Court may not have a problem with that.
I’m worried about Gundy. One word more about why. Adrian Vermeule argued yesterday “that as the stakes increase in future cases, as the consequences of casting the fifth vote to destabilize the administrative state focus the judicial mind (especially the mind of the Chief Justice), the likelihood of invalidation will fall correspondingly. Or so the safe bet seems to me.”
Vermeule might be right about that. But I see two concerns he may be scanting. First, there’s a tail risk that the Supreme Court does something quite dramatic. Given how destabilizing that would be, the tail risk alone is a serious concern. Second, the nondelegation doctrine need not be fully reinvigorated (reincarnated?) to have pernicious consequences. The lower courts in particular will be tempted to construe statutes to avoid newly perceived constitutional difficulties, and the narrowing itself would be harmful. Think the Benzene case, but on steroids.