Libertarian legal scholars want to shrink the administrative state
The major issue in the case was how much power Congress could delegate to the executive branch. Ever since the New Deal, the Court has blessed ample transfer of power, on the theory that modern government requires judgment calls that experts in the executive branch are better positioned to make than harried legislators. Yet some libertarian legal scholars have long wanted to revive the so-called “non-delegation doctrine,” which would require that Congress only pass laws that make most of the relevant policy decisions in advance, at the time a bill is passed.
This campaign has found allies in President Trump’s nominees to the Court. Neil M. Gorsuch’s record-straining 33-page dissent in Gundy was nearly twice as long as Elena Kagan’s plurality opinion. In it, he harks back to the 1930s when “federal statutes granting authority to the executive were comparatively modest and usually easily upheld.” Instead of the explosive growth of government after the New Deal, he lauds the 1788 warning by James Madison in Federalist Number 62 against an “excess of law-making.”
Under this interpretation, by installing onerous checks and balances with the Senate and presidential veto, the founders pushed for every law to be backed by what Gorsuch calls a “widespread social consensus.” Consensus is a much higher standard than the standard majority vote (ironically, the Congressional Act that Gundy challenged passed both the House and Senate on a unanimous vote) and would, if taken literally, have sweeping consequences for attempts to implement ambitious legislation in the future.
This would not have happened if Garland had been confirmed
Gundy is just the latest reminder of how consequential it was that Senate Majority Leader Mitch McConnell blocked Merrick Garland’s confirmation. In dissent, Gorsuch wrote that he held out hope that “in a future case with a full panel” — i.e., with Kavanaugh off the sidelines — the justices would rein in “delegation running riot.” Samuel Alito — a Bush appointee — noted in a concurring opinion that he too hoped Kavanaugh would help excise the post-New Deal legacy, writing, “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out” Gundy as the scalpel for doing so. (Gorsuch was not impressed, saying because Alito didn’t agree with the majority’s legal analysis, “I would not wait.”) Kavanaugh’s prior opinions make clear that he would be unlikely to wait either.
This may have consequences for tariffs too
The conservative bloc could decide as early as this week whether to take a second go at administrative delegation. On Monday, the justices may announce whether they will take up American Institute for International Steel v. United States, a non-delegation challenge of Trump’s steel tariffs.
Both the opinion and dissent makes things look good for the steel importers and bad for Trump. For Kagan, the Adam Walsh Act was constitutional because it spelled out clearly its policy aims and limited the executive branch’s discretion to implementation feasibility. For Gorsuch, Congress should write laws that are clear enough that voters can hold it accountable for their consequences, and should limit executive branch discretion to finding facts to questions lawmakers lay out in advance. Even then, vague laws, abusive presidents, and laws that pose questions of “deep economic and political significance” may require a Court check.
On each of these planks, Trump’s steel tariffs — and others now threatened on auto imports — fail. The 1962 Trade Expansion Act underpinning the duties has vague definitions of protecting national security, is hugely economically consequential, and allows the president to determine whether, when, how, and for how long to take abusive trade action against imports. So the odds look good for free traders, and for anyone hoping to get a full panel to roll back the administrative state. If the steel decision resembles Gundy, we may even see the strange spectacle of conservative justices joining with liberals to issue a ruling that undermines a Republican president on the major policy initiative underlying his pitch to the Midwest in an election cycle.
Todd N. Tucker is a political scientist and fellow at the Roosevelt Institute and the author of “Judge Knot: Politics and Development in International Investment Law” (Anthem Press). Follow him on Twitter @toddntucker.