U.S. Supreme Court Justice Elena Kagan warned Americans in June that four of her colleagues were on the verge of declaring that "most of government is unconstitutional."
In November, a fifth justice, Brett Kavanaugh, indicated that he agreed with those four that the “nondelegation doctrine” should be revived. The Supreme Court, that is, should deny Congress the power to grant its legislative authority to government agencies.
Conservatives and libertarians are giddy at the thought of finally reining in the "administrative state," Vox spoke for many liberals in ringing the alarm, "Brett Kavanaugh’s opinion should terrify Democrats," wrote Ian Millhiser. "It’s impossible to exaggerate the importance of this issue. Countless federal laws, from the Clean Air Act to the Affordable Care Act, lay out a broad federal policy and delegate to an agency the power to implement the details of that policy."
But it is possible to exaggerate the importance of the nondelegation doctrine, and that is exactly what is happening right now.
Any attempt to revive that doctrine would quickly run into two obstacles: the inability of judges to find a manageable standard for deciding how much delegation is improper, and their unwillingness to risk a political backlash.
Start with the intellectual problem. In that June case, Justice Neil Gorsuch ably articulated the case for nondelegation to the constitutional structure. The Constitution vests "all legislative powers" it creates in the Congress, not just some of it, and thereby strengthens voters’ ability to hold lawmakers accountable for laws.
It’s a point Justice Antonin Scalia appreciated well: In a 1989 dissenting opinion, he wrote that: "the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system." But he added that “it is not an element readily enforceable by the courts."
Scalia, who died in 2016, continued, "Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law … the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree."
How to draw the line between a proper and improper delegation, he suggests, is itself a legislative judgment more than a judicial one.
The political problem is that striking down large portions of modern government, let alone “most” of it, would draw intense opposition from many elected officials, speaking for many voters. The court has repeatedly shied away from the sort of political confrontation such action would invite. It famously let almost all of the New Deal stand in the 1930s, notwithstanding the constitutional objections to it.
Recent decades have seen false alarms about a Supreme Court prepared to pare back federal power.
The court’s efforts to reinvigorate federalism in the 1990s were a case in point.
When four justices voted to allow states to impose term limits on members of Congress in 1995, for example, Linda Greenhouse reported for The New York Times that it was "only a slight exaggeration to say that the dissent brought the court a single vote shy of reinstalling the Articles of Confederation."
The reality of the court’s federalism decisions since then has been much less exciting. The justices have ruled, for example, that the federal government cannot order individuals to buy health insurance but can penalize them for not buying it.
The court is widely thought to have ruled in this limited way because some justices, especially Chief Justice John Roberts, do not want the institution to be too prominent in politics. If there is any truth at all to this characterization, Roberts will not be willing to use the nondelegation doctrine to impose major changes to the operation of the federal government.
The truth is that the court has never been aggressive in deploying the doctrine. It has struck down laws as unconstitutional delegations of power only twice in U.S. history, both in the 1930s.
The doctrine has had only a spectral presence in the law ever since: The court will sometimes interpret a statute so as to keep it from delegating too much power to an agency or department. To speak of a "revival" of the doctrine, as nearly everyone involved in the conversation does, is therefore a misnomer.
The actual stakes of the current debate are whether the court will be a little more forceful about delegations of power.
It’s worth noting that judicial overreach could lead to resistance from Republicans as well as Democrats. Legal conservatism has been turning more libertarian: Scalia-style admonitions for restraint are heard less than they once were, while calls for the courts to rein in government are more frequent.
But political conservatism is getting less libertarian. See, for instance, the election of the entitlement-protecting, tariff-raising President Donald Trump. The next big nondelegation case on the horizon, as it happens, goes after Trump’s steel tariffs.
This mismatch is one more reason to doubt that "the deconstruction of the administrative state," as former Trump adviser Steve Bannon once put it, will prove sustainable or inviting for conservative justices.
The likelihood that the administrative state is here to stay will disappoint many on the right and reassure many on the left. But all of them should calm down.
Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of "The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life." To read more of his reports — Click Here Now.
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