In two divided decisions issued one day in late June, the Supreme Court came close to rewriting the law in two different areas that could have produced devastating consequences for all Americans. In both these cases, as well as in future controversies on these issues, President Trump’s Supreme Court appointees occupy central roles.
Start with Gundy v. United States, which concerns the obscure-sounding but very important “non-delegation doctrine.” Since the New Deal, when Congress began to authorize administrative agencies to carry out broad policy objectives through detailed regulation and enforcement, right-wing advocates have argued that such laws improperly delegate legislative power to such agencies. Since the mid-1930s, however, the Supreme Court has generally upheld such legislation so long as there is an “intelligible principle” in the law to guide the discretion of the officials who implement it. This has been crucial to sustaining numerous laws—including those that authorize the EPA to determine which technologies will best achieve Congress’ goal of cleaning the air, that authorize the Department of Labor the authority to identify and remedy abuses in the workplace, and many more.
As part of their efforts to accomplish what Trump adviser Steve Bannon called “deconstruction of the administrative state,” however, today’s right-wing advocates are trying to revive the non-delegation doctrine and argue that the courts should strike down such laws as unconstitutional. The result would be a “revolution in federal law” that would cause devastating harm to Americans.
That revolution almost began in Gundy. That case concerned a law that gave the Attorney General the authority to determine which individuals convicted before the enactment of the Sex Offenders Registration and Notification Act (SORNA) were subject to the notification and other provisions of the Act. Justice Kagan’s plurality opinion easily upheld the law under the “intelligible principle” rule, noting that if SORNA’s delegation was unconstitutional, “then most of Government is unconstitutional.”
That is precisely what Trump-appointed justice Neil Gorsuch argued in a dissent joined by Chief Justice Roberts and Justice Thomas, claiming that SORNA was unconstitutional under the non-delegation doctrine—and that the “intelligible principle” rule should be scrapped in favor of much more intrusive court review of laws authorizing action by agencies.
But why did only three of the conservative justices express that view?
Despite his well-known right-wing views on such issues, Trump-appointed justice Brett Kavanaugh did not participate in Gundy because it was argued before he joined the Court in October. Justice Alito, in turn, concurred in the result to make the ruling in Gundy 5-3, but made clear that he would “support” an effort to “reconsider” the non-delegation doctrine if “a majority of this court were willing” to do so.
So thanks to Gorsuch and Kavanaugh, when another case comes to the Supreme Court presenting a non-delegation argument, the “revolution” in the law will probably come, and a 5-4 majority is all too likely to rule that “most of government is unconstitutional.” That would cause a lot of harm.
The other narrow escape came in American Legion v. American Humanist Ass’n.,which concerned the constitutionality under the Establishment Clause of the 40-foot cross on public property in Bladensburg, Maryland. Right-wing advocates hoped the Court’s decision in this case would do much more than allow the memorial cross to remain. They pushed for the Court to use the case to rewrite decades of First Amendment protection by ruling that government could promote or endorse specific religions. They argued, for example, that the Court should explicitly overrule the so-called Lemon test, under which government cannot take action with a religious purpose, or with the effect of promoting religion, or that excessively entangles religion and government. These conservative advocates asked the Court to rule that the government violates the Establishment Clause only where it uses “compulsion by law” to “coerce” belief, observance, or financial support for a particular religion. Under that view, for instance, government could erect new crosses tomorrow on top of public schools, near state courthouses, and next to houses of Congress.
Although the 7-2 decision in American Legion did erode the nation’s commitment to government neutrality towards religion, as Justice Ginsburg explained in dissent, it did not go nearly as far as some conservatives hoped. It was formally limited to the Bladensburg cross and emphasized the fact that the cross had stood for almost 85 years, noting that this did not mean government could set about “erecting or adopting new ones.” Although the majority opinion was critical of the Lemon test, at least as applied to “religiously expressive” monuments, it did not overrule it or adopt a “coercion” test.
But a number of justices, including Trump-appointed justices Gorsuch and Kavanaugh, tried to go much further. Justice Kavanaugh’s concurring opinion claimed that Lemon is already dead, and that a challenged government practice is constitutional if it comports with “history and tradition” and “is not coercive.” Justice Gorsuch similarly wrote that Lemon has already been “shelved” and that government action simply promoting religion should be constitutional. He then went even further to suggest that no one should have standing to challenge such “religiously expressive” monuments at all. Justice Thomas agreed with the “coercion” test and with Gorsuch’s view about limiting standing, and reiterated his view that the Establishment Clause should not apply at all to action by state and local governments.
Neither Chief Justice Roberts nor Justice Alito agreed with these radical views, at least in this case. But in a future case that more squarely presents the question of whether only government “coercion” concerning religion violates the Establishment Clause, a 5-4 majority led by Kavanaugh and Gorsuch adopting that view is all too likely. As Justice O’Connor once wrote, the result will be to violate religious liberty by authorizing government to send a “message to nonadherents” of the preferred religion “that they are outsiders, not full members of the political community.”