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Justice Kavanaugh Signals There Are Now Five Votes To Restore A Crucial Constitutional Doctrine

By  Josh Hammer
DailyWire.com
Neil Gorsuch, associate justice of the U.S. Supreme Court, left, and Brett Kavanaugh, associate justice of the U.S. Supreme Court, attend the U.S. President Donald Trump's State of the Union address to a joint session of Congress at the U.S. Capitol in Washington, D.C., U.S., on Tuesday, Feb. 5, 2019. Trump cast his fight against illegal migration to the U.S. as a moral struggle, and charged in his second State of the Union address that partisan investigations threaten economic progress under his administration.
Doug Mills/Pool via Bloomberg/Getty Images

After today, it seems that constitutionalists have reason to be optimistic about the U.S. Supreme Court’s willingness to soon rectify a pivotal separation of powers doctrine.

Last term, in the case of Gundy v. United States, the Court refused to resuscitate constitutional law’s so-called “non-delegation doctrine.” The non-delegation principle, which directly flows from Article I, Section 1‘s provision that “[a]ll legislative Powers herein granted shall be vested in a Congress,” simply affirms that Congress cannot delegate its exclusively vested lawmaking power to other branches of the federal government  — meaning lawmaking power delegated to the executive branch’s sprawling administrative state, in practice. Although that proposition might seem like an unassailable interpretation of the Article I Vesting Clause’s plaint text, the Court has muddled the doctrine since the time of the New Deal by only requiring that Congress cabin its delegations to the administrative state with the veneer of a discretion-constraining “intelligible principle.”

In Gundy, a case in which Justice Kavanaugh was recused, the four liberal justices refused to restore the non-delegation doctrine to its rightful place in constitutional law. Justice Gorsuch, joined by Justice Thomas and Chief Justice Roberts, dissented, noting that “[t]hrough the Constitution, … the people had vested the power to prescribe rules limiting their liberties in Congress alone. No one, not even Congress, had the right to alter that arrangement.” Justice Alito, recognizing Justice Kavanaugh’s recusal from the case, wrote a stealthy concurrence in the judgment in which he opined that “[i]f a majority of this Court were willing to reconsider the approach we have taken” to non-delegation cases since the New Deal, then he “would support that effort.”

After Gundy was decided, constitutional scholar John Eastman explained why Alito’s vote was so crafty:

When a justice is recused from a case and the remaining eight justices are evenly divided, the court merely issues a one-line order noting that the judgment of the lower court “is affirmed by an equally divided court.” In Gundy’s case, that would mean the decision of the U.S. Court of Appeals for the Second Circuit against him would stand, and we would have nothing further about the non-delegation doctrine coming from the Supreme Court in the case. Had Alito joined Justice Neil Gorsuch’s dissenting opinion thoroughly analyzing (and reviving) the non-delegation doctrine, that opinion would no longer have been a dissent. But neither would it have been a majority, because of Kavanaugh’s recusal. Instead, the court would have merely affirmed the Second Circuit’s decision by an equally divided court, and neither Kagan’s nor Gorsuch’s opinions would have seen the light of day.

After today, Alito’s clever Gundy opinion looks even better. The Court denied taking up the case of Paul v. United States today, but Kavanaugh issued a special statement in which he all but expressly affirmed his agreement with the logic of Gorsuch’s Gundy dissent. Kavanaugh wrote, in relevant part:

I write separately because JUSTICE GORSUCH’s scholarly analysis of the Constitution’s non-delegation doctrine in his Gundy dissent may warrant further consideration in future cases. JUSTICE GORSUCH’s opinion built on views expressed by then-Justice Rehnquist some 40 years ago in Industrial Union Dept., AFL–CIO v. American Petroleum Institute

Like Justice Rehnquist’s opinion 40 years ago, JUSTICE GORSUCH’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.

The result is that there now appears to be a five-justice majority on the Court to restore the non-delegation doctrine — an indispensable component of the original Constitution’s structural separation of powers. Conservatives and constitutionalists alike ought to unambiguously cheer on this development.

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