Conservative Justices Endorsed Limited Executive Powers in Gundy. Will They Be Consistent?

We’ll find out when the Supreme Court announces its decision in Department of Commerce v. New York.
by Kim Wehle
June 21, 2019
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In a decision issued this week, Gundy v. United States, the Supreme Court wrestled with an epically confounding question regarding the separation of powers: Can Congress hand off to the president its constitutional power—and obligation—to make laws?

If the many executive branch federal agencies dotting Washington, D.C., are any indication, the answer is a resounding “yes.” Agencies make laws all the time. When they do, they are generally called “regulations.”

In Gundy, the court revisited a longstanding separation of powers critique of law-making by executive branch agencies. Article I of the Constitution gives that power to Congress—not the president. The president executes, enforces or implements the laws that Congress passes.

Think of a police officer and a prosecutor. They might gather facts and data in order to decide whether to enforce a criminal law against a particular individual, but they don’t actually make the laws that they are charged with enforcing. Such a system would give the executive way too much power. Hate your political opponent? Make up a law that suits his situation and prosecute him for violating that law. That’s not okay in our constitutional system.

In Gundy, at issue was the Sex Offender Notification and Registration Act (SORNA), which Congress enacted in 2006 to close loopholes among a patchwork of state laws requiring that all sex offenders register with the government (by providing names, addresses, and other personal data). SORNA unified and tightened the registration requirements, and added penalties of up to 10 years in prison for failing to register.

Congress didn’t state whether the registration requirements applied to sex offenders who had already completed their sentence when SORNA became law, however. Instead, it handed that task off to the attorney general, who was given the authority to decide whether SORNA applied to pre-statute offenders and to decide what sorts of rules govern those people. The plaintiff was one such pre-statute offender. He challenged the statute on the grounds that only Congress—not the attorney general—is constitutionally authorized to make the profound decisions as to whether he is bound by the law.

The progressive wing of the Supreme Court joined in upholding SORNA’s handoff of Congress’s legislative baton to the attorney general. Justice Alito concurred. Justice Gorsuch wrote a dissenting opinion, which Chief Justice Roberts and Justice Thomas joined. Kavanaugh did not participate.

Let’s be clear: The claim that only Congress can make laws has been a dead letter since the 1930s. So long as Congress includes in its laws some guideposts for agency law-making (and there were enough in SORNA to satisfy the legal precedents on this issue) the Supreme Court has overwhelmingly condoned executive branch law-making on Congress’s behalf.

In dissent, Justice Gorsuch wrote a downright beautiful and compelling essay on why the framers of the Constitution divided government up into three branches in the first place, how it’s all about protecting individual liberties, and how the structure of government—and the separate functions of each branch—must be maintained if democracy is to flourish and survive.

This is music to one’s ears. The separation of powers needs to be carefully tended else we slip into autocracy, which is not hyperbole in 2019.

Gorsuch emphasized that having your name on a sex offender list for the rest of your life is a really big deal. The legislative process is laborious for a reason, and Congress shouldn’t be able to just leapfrog over its constitutional obligations and hand off its power to unelected bureaucrats within the president’s chain of command. The problem with this argument is a practical one. The massive regulatory bureaucracy is too entrenched in the economy and our everyday lives to dismantle it.

Now let’s turn the page to another case still pending before the Supreme Court—Department of Commerce v. New York, which positions the justices to decide whether the Trump administration acted lawfully in its bid to ask people about their citizenship on the 2020 census.

Bear a few things in mind here. The Constitution itself requires a census every 10 years, “in such manner as [Congress] shall by Law direct.” Congress passed its first Census Act in 1790—shortly after the Constitution was ratified. The commerce secretary’s power to decide what questions to include in the census form still derives from legislation passed by Congress. Much like SORNA gave the attorney general the power to decide the retroactive scope of the sex offender registration law, the Census Act gave the commerce secretary the power to conduct the census survey “in such form and content as he may determine.” It also states that the commerce secretary is “authorized to obtain such other census information as necessary.”

Importantly, the Census Act imposes monetary penalties for failures to complete the form truthfully—or at all. If people decline to respond to the census for fear that a certain question could get them in trouble with the government, they could be in trouble with the government.

Like SORNA, the Census Act easily passes the constitutional test for determining if Congress properly handed off the census baton to the commerce secretary. But will Gorsuch and the conservatives who joined his dissent in Gundy take equal umbrage to Congress’s duty-shirking in the Census Act?

Arguably, the census does not affect liberties to the same extent that sex offender status does. And the census is about data-collecting, which police officers and prosecutors do when they enforce the law.

But Article I’s vesting of the legislative power in the Congress includes no definitions. Moreover, the understandable hullabaloo over the citizenship question arises from the data showing that inclusion of the question will actually depress the response rate from people who fear the question. That undermines the census’s purpose: head-counting.

Census data is used to determine how many elected officials each state gets to send to the House of Representatives. It also has a huge impact on the states’ respective shares of billions in federal dollars. Funding and votes in Congress impact individual lives. There’s also evidence suggesting that the citizenship question was motivated by the prospect of discriminating against Hispanics and Democratic voters—a tidbit that prompted a challenge under the Equal Protection Clause of the 14th Amendment.

The separation of powers question is this: In the panoply of cases about executive power to come before this Supreme Court, will the conservatives adhere to Gorsuch’s passionate and principled stance on confining the president’s power to make laws that impact regular people?

Let’s not hold our constitutional breath.

At oral argument, Justice Gorsuch’s questioning sounded much more like that of a legislator than a judge. He got into the nitty gritty of the policy decision before the commerce secretary and said nothing about the breadth of the agency’s law-making power itself.

Justice Kavanaugh made these telling comments during the Department of Commerce argument, as well:

“[W]hy doesn’t Congress prohibit the asking of a citizenship question in the same way that Congress has explicitly provided that no one can be compelled to provide religious information?”

Given Justice Gorsuch’s dissent in Gundy, this was an excellent question, as the legislative prerogative belongs to Congress, not an executive officer. There’s more:

“And the statute that Congress has passed gives huge discretion to the Secretary how to fill out the form, what to put on the form . . . Given the statutes, why does that judgment fall below the standard of reasonableness in assessing the different policy considerations?”

Translation: Congress handed off a big fat legislative baton to Commerce Secretary Wilbur Ross in the Census Act, so why shouldn’t we let him run with it?

Whether Gorsuch was correct in assailing executive law-making in Gundy is a richly complex and theoretical question of constitutional law. Regardless of how one comes out on that, Gorsuch’s opinion is painfully inconsistent with the conservative justices’ questioning in Department of Commerce. If Congress must keep hold of its legislative baton in order to preserve the Constitution’s structure and protect individual liberties, then the court cannot pick and choose which cases must abide by that principle. Otherwise, the court is making decisions based on policy outcomes—not constitutional basics.

Let’s hope that Justice Gorsuch’s inspiring separation of powers tome prompts intellectual honesty on the court across-the-board. The separation of powers desperately needs it.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).