What Deference Does It Make? This year’s Supreme Court theme: Know your role.

Adam Carrington

Know your role. This prescription pervades the basketball world. Adhering to it requires an honest assessment of one’s own abilities and their in relationship to one’s teammates’. Do you contribute best as a scorer, facilitator, or defender? Does your skill set work better for post-play or on the perimeter? By knowing and acting within your role, you improve the team, increasing your chances of winning. The adage also works for our national political institutions. The Constitution establishes them according to the theory of separation of powers. Congress, the presidency, and the courts each possess a role in this system — lawmaking, law enforcing, and law interpreting. Operating according to one’s part, then, results in government better at both protecting liberty and not threatening it. Knowing your role helps to describe the decisions and debates dominating the Supreme Court’s recently completed 2018 term. As with any docket, certain cases involved determining individuals’ constitutional rights. Decisions regarding free speech, the Establishment Clause, and the Eighth Amendment all fell within this category. But, in the big cases, the most common theme concerned determining where and how distinct governmental institutions fit within our constitutional system. These determinations required the Court to consider both the part each institution should play and its implications for our principles...MORE

The article goes on to discuss decisions from this term that address the role of the court (gerrymandering). the role of congress (non-delegation) and the role of the executive (census). They got 2 out of three right. Here is what the author says about the one they got wrong:

Congress’s Role: Non-Delegation

We turn next to Congress. It exercises the legislative power in our system, crafting the laws that the other national institutions enforce and interpret. Separation of powers obviously requires that another branch cannot usurp this legislative power against Congress’s will. But it also says that Congress cannot give up its power willingly, either, a principle that the Court has called the non-delegation doctrine. This principle also concerns knowing one’s role. Congress is constructed by the Constitution to best create the regulations that order our common lives. The other branches are not so constituted and are, in fact, set up to fail when they try. This term’s Gundy v. United States considered whether or not Congress had ceded its legislative power to the executive branch in SORNA, the Sex Offender Registration and Notification Act. This 2006 law established a national system to register sex offenders and to notify communities wherein they resided after incarceration. Yet, while stating in detail how this system applied to subsequent offenders, the law seemed to give the attorney general carte blanche regarding whether, how, and when to apply these rules to those convicted before the law’s passage. In other words, it gave a member of the executive branch lawmaking power. Justice Elena Kagan wrote the plurality opinion. In it, she argued that SORNA did not violate the non-delegation doctrine because it merely gave the attorney general discretion as to how quickly to implement the law, not whether or how. The dissent persuasively critiqued this interpretation of the law, showing how it already had been implemented in the much broader, legislative fashion. The real import of the case, however, portended a bigger battle over Congress’ role in our constitutional system. While paying lip service to separation of powers, Kagan argued that leaving legislation to Congress has not happened for a long time and now would not work if tried. On the first count, she is right. For more than a century, Congress, with varying speed, has given over regulatory authority to a perpetually increasing bureaucratic structure: the Administrative State. As the dissent showed, this long march of delegation drifts us ever further from our Constitutional system and ever more toward rule by career administrators, not the people’s representatives. On the second count, she may also be right — to a degree. We have become so dependent on agency lawmaking that shifting responsibility back to a listless Congress presents extensive practical problems. But that is cause for prudent, even if gradual, correction, not sighing capitulation. Congress must not only recall its role; it must also reclaim it.

I would encourage folks interested in this issue, and what happened in the 1930s that allowed the creation of the administrative state we face today, to read the dissenting opinion by Justice Gorsuch, in which he was joined by Chief Justice Roberts and Justice Thomas. Gorsuch concludes:

I remain hopeful that the Court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That “is delegation running riot.”1

Given Justice Alito's statement he would support an effort to reconsider the issue, it would appear we have four votes. Since Justice Kavanaugh did not participate in this decision, we may very well have five. This also highlights the importance of the next appointee to the Supreme Court. As Justice Kagan writes:

 Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional...

Exactly.