Gorsuch and Such

Here’s a wonky and quickly put together companion post to my earlier piece on Gundy v. US, and what is means for the administrative state.

Check that piece out for an overview on Gorsuch’s dissent (saying he would overturn the Adam Walsh Act’s delegation of sex offender registry rules to the executive branch (SORNA). My contention in the piece is that the conservative majority appears to be setting up a glide path to rule against administrative state powers, and that a looming case (AIIS v. US) over Trump’s steel tariffs — passed under Section 232 of the Trade Expansion Act of 1962 — might be a way to do that.

The audience for this piece is much more narrow — maybe three people that read the decision and are steeped in non-delegation issues.

I’ll be the first to admit that arguing about these particular delegation issues is awkward. There are weird civil liberties issues in the Adam Walsh Act, and I have questions about the fairness of our overall criminal justice system. I don’t think 232 is a particularly good law, and I would love to see Congress enact more laws and exercise more oversight on trade and industrial policy. But — until we have a constitutional convention to institute a different type of democracy — we will need expert agencies able to move quickly to solve social problems. I’m worried where the conservative majority appears to be taking us on this front, using Gundy and perhaps AIIS as a scalpel.

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The rest of this post is basically my read-along of the Gorsuch dissent in Gundy. I make no attempt to make this a light read. Sorry.

Is there a path for Gorsuch to side for Gundy but against AIIS — were it to come up? That would mean the conservative justices would avoid having to pick a fight with the administration but set up their fight on the administrative state for another case — think an Obama era environmental law. Over on Twitter, Harlan Cohen seems to think there’s a way to serve all their masters. I’m not so sure (setting aside for now that the might not take up AIIS, in which case all the below is moot).

Let’s look at how Gorsuch describes Adam Walsh Act / SORNA’s “vast” delegation.

“The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast. As the Department of Justice itself has acknowledged, SORNA “does not require theAttorney General” to impose registration requirements onpre-Act offenders “within a certain time frame or by a date certain; it does not require him to act at all.”8 If the Attorney General does choose to act, he can require all pre-Act offenders to register, or he can “require some but not all to register.”9 For those he requires to register, the Attorney General may impose “some but not all of [SORNA’s] registration requirements,” as he pleases.10 And he is free to change his mind on any of these matters “at any given time or over the course of different [political] administrations.”11 Congress thus gave the Attorney General free rein to write the rules for virtually the entire existing sex offender population in this country…”

Sound familiar? That’s basically the steel tariffs. Trump can decide if there’s a national security emergency or not, can impose tariffs or not, on whatever he wants, for as long as he wants — or not.

Gorsuch goes on — “These unbounded policy choices have profound consequences for the people they affect,” citing Gundy’s jail sentence over a failure to register. From the rest of Gorsuch’s opinion, it’s clear that he thinks economic costs are also profound.

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Section II(A) of Gorsuch’s dissent is where he celebrates the pre-1930s economy where government did very little harm to people, in his view. Willy nilly tariffs would seem like exactly the type of excess of laws he dislikes. Checks and balances help slow things down, and forcing Congress to set the policy helps voters hold them to account. “Legislators will face rational incentives to pass problems to the executive branch” — a passing of the buck that’s exactly what 232 operationalizes.

Here’s Gorsuch’s test in II(B) for permissible delegation:

1) “as long as Congress makes the policy decisions when regulating private conduct, it may authorize another branch to “fill up the details.”

2) “once Congress prescribes the rule governing private conduct, it may make the application of that rule depend on executive fact-finding”

It’s true that Gorsuch approvingly cites precedents where the Court blessed application of a trade embargo, and other uses of discretion:

“Half a century later, Congress likewise made the construction of the Brooklyn Bridge depend on a finding by the Secretary of War that the bridge wouldn’t interfere with navigation of the East River. The Court held that Congress “did not abdicate any of its authority” but “simply declared that, upon a certain fact being established, the bridge should be deemed a lawful structure, and employed the secretary of war as an agent to ascertain that fact.”

Even this example is more tethered to a discernable fact pattern (names a place and activity on which there would be wide agreement) than 232’s broad delegation.

3) “While the Constitution vests all federal legislative power in Congress alone, Congress’s legislative authority sometimes overlaps with authority the Constitution separately vests in another branch. So, for example, when a congressional statute confers wide discretion to the executive, no separation-of-powers problem may arise if “the discretion is to be exercised over matters already within the scope of executive power… [e.g.] many foreign affairs powers are constitutionally vested in the president

There’s enough in this passage that you could argue where Gorsuch would come down either way. Certainly a law that dealt with foreign affairs alone would give the president wide latitude. But 232 interferes with one of Congress’ enumerated powers: trade. I read this “overlaps” language as contemplating a danger zone for delegation. Reading ahead, Gorsuch writes that, “SORNA does not involve an area of overlapping authority with the executive. Congress may assign the President broad authority regarding the conduct of foreign affairs or other matters where he enjoys his own inherent Article II powers.” This is a key passage: the executive has no enumerated trade powers — other than leading international negotiations, which the domestic 232 is not.

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Turning to II(C), we see how Gorsuch looks at the two occasions when SCOTUS struck down New Deal legislation on non-delegation grounds.

“In A. L. A. Schechter Poultry Corp. v. United States, the Court considered a statute that transferred to the President the power “to approve ‘codes of fair competition’” for slaughterhouses and other industries.45 But Congress offered no meaningful guidance. It did not, for example,reference any pre-existing common law of fair competition that might have supplied guidance on the policy questions, as it arguably had done earlier with the Sherman Act.46 [Ed. watch this space re: hedge word “arguably”. Are the conservatives now going to go after the antitrust rules??] And it did not announce rules contingent on executive fact-finding. Nor was this assigned power one that anyone thought might inhere in the executive power. Proceeding without the need to convince a majority of legislators, the President adopted a lengthy fair competition code written by a group of (possibly self-serving) New York poultry butchers…

These seem awful like 232. It doesn’t legally define what is national security or import threats, there’s no firm course of action that has to be followed even if the facts are established, there’s no need to convince Congress of the wisdom of the course of action, and there’s every indication that the regime spurs self-interested lobbying by affected industries.

Back to Gorsuch:

The same year, in Panama Refining Co. v. Ryan, the Court struck down a statute that authorized the President to decide whether and how to prohibit the interstate transportation of “‘hot oil,’” petroleum produced or withdrawn from storage in excess of state-set quotas. As in Schechter Poultry, the law provided no notice to regulated parties about what the President might wind up prohibiting, leading the Court to observe that Congress “ha[d]declared no policy, ha[d] established no standard, ha[d] laid down no rule.”49 The Court explained that the statute did not call for the executive to “ascertai[n] the existence of facts to which legislation is directed.”50 Nor did it ask the executive to “‘fill up the details’” “within the framework of the policy which the legislature has sufficiently defined.”51

This looks a little better for the US in AIIS, in that notice is important (which 232 has). Commerce does make a practice of filling in some details (though the whole process is highly subjective). But we’re back to the problem that there’s no action mandated to be taken, nor what threshold of detail is sufficient. Congress doesn’t give any guidance.

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From there, Gorsuch announces he thinks the intelligible principle doctrine is pretty much a sham anyway. JW Hampton (which inaugurated the idea) for him was based on more “traditional tests”

J. W. Hampton passed muster under the traditional tests.To boost American competitiveness in international trade,the legislation directed the President to “‘investigat[e]’” the relative costs of production for American companiesand their foreign counterparts and impose tariffs or duties that would “‘equalize’” those costs.56 It also offered guidance on how to determine costs of production, listing several relevant factors and establishing a process forinterested parties to submit evidence.57 The President’s fact-finding responsibility may have required intricate calculations, but it could be argued that Congress had made all the relevant policy decisions, and the Court’s reference to an “intelligible principle” was just another way to describe the traditional rule that Congress may leave the executive the responsibility to find facts and fillup details.58

The Tariff Act of 1922 at issue in Hampton was much more granular and prescriptive than 232: it even provided math! So Gorsuch could think Hampton was rightly decided and still rule against the government in AIIS.

Gorsuch then argues that SCOTUS now uses other tests to achieve these traditional goals:

• Citing Roberts’ ACA decision to gut healthcare tax credits (smooth move), we don’t allow statutory gaps to be filled by the executive when they involved “a question of deep ‘economic and political significance’ that is central to the statutory scheme” [Side note: Here’s where Roberts’ long game on that case racks up real points for the right. Go team!]
• Citing his own concurrence in Sessions v. Dimaya, he notes that ““A vague law,” this Court has observed, “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.”
• Finally, SCOTUS polices separation of powers, citing a number of cases.

How would these other doctrines play in thinking about AIIS? 232 decisions have “deep economic and political significance” and the law is awfully vague. And it encroaches on Congress’ enumerated powers.

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Gorsuch wraps up by going through how SORNA fits in with his tests. I won’t go into all of it, but look at how he describes the measure: “freed from the need to assemble a broad supermajority for his views, the Attorney General did not hesitate to apply the statute retroactively to a politically unpopular minority.” Trump hasn’t convinced hardly any members of his views, and he’s using trade levers to punish foreign producers who have no political representation in the US.

And here’s another tricky passage:

“The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government. Instead, it is a procedural guarantee that requires Congress to assemble a social consensus before choosing our nation’s course on policy questions like those implicated by SORNA. What is more, Congress is hardly bereft of options to accomplish all it might wish to achieve. It may always authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers. Congress can also commission agencies or other experts to study and recommend legislative language. Respecting the separation of powers forecloses no substantive outcomes. It only requires us to respect along the way one of the most vital of the procedural protections of individual liberty found in our Constitution.”

This is another one of those passages that could be interpreted in different ways. It might be a call for Congress to flesh out 232 a lot better, which would be good for the government in AIIS v. US. But it could be read the other way, as evidence that Congress made a law that didn’t have a “social consensus” — tariffs aren’t very popular, and certainly do not have a social consensus in their favor.

This long post could be a total waste of time. The Court might decline to take up AIIS. But a close read of Gorsuch’s dissent lays out a worldview aimed at rolling back the 20th century. If not with AIIS, I have no doubt he’ll find another opportunity to try to do so.