https://www.cato.org/publications/co...5GWI21LwUDbhPA
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Last week, the Supreme Court took a major step toward rolling back one of the most unconstitutional features of our federal government: the over-delegation of lawmaking power to the executive branch and administrative agencies. In Gundy v. United States, the Court took a relatively obscure case filed by a public defender—one with no support from amicus briefs or popular commentary—and revisited the nondelegation doctrine, a crucial but largely forgotten part of our Constitution. And while we can’t know for sure, this turn of events was likely due to the actions of Justice Neil Gorsuch.
In his second term, Gorsuch is again showing how a principled commitment to the Constitution can help reshape the Court into a more nonpartisan and just institution.
Ultimately, Gorsuch not only caught the pass from the petition, he spiked the ball with his dissent. The nondelegation doctrine ensures “that only the people’s elected representatives may adopt new federal laws restricting liberty.” Allowing the attorney general to define which sex offenders must register under SORNA endows “the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.” But the case isn’t about sex offenders; it’s about liberty, because “if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”
Gorsuch’s dissent was joined in full by Justice Clarence Thomas and Chief Justice John Roberts. Alito, as we’ve seen, is open to reconsidering the doctrine. The only question is how Kavanaugh would vote, but it seems likely he’ll be onboard. In the next case, we could see 84 years of constitutional abdication rolled back, all because of a petition filed in an obscure case that effectively appealed to Gorsuch’s principled adherence to the Constitution.
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