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Commentary

The Supreme Court Won’t Dismantle the Administrative State Quite Yet

Source: barrons.com 4/19/21

Progressives, conservatives, investors and Supreme Court-watchers are all anxiously awaiting the court’s decisions later this spring in two cases—American Hospital Association v. Becerra and West Virginia v. Environmental Protection Agency—which some experts have warned could sound a death knell for the “administrative state.” Not so fast: the authority of regulators is likely to be further limited, but not gutted. That’s the broad takeaway I got from moderating a recent panel for the Brookings Institution of constitutional and administrative law experts—Professors Anne Joseph O’Connell, Susan Rose-Ackerman, Ilya Wurman and public interest lawyer and author Simon Lazarus.

Of the two cases, only West Virginia appears likely to trigger constitutional issues. In that case, multiple state attorneys general challenged the constitutional authority of the EPA to set broad carbon dioxide emissions standards for greenhouse gas emissions outside the “fence” of power plants. This challenge has aroused intense interest because of the possibility, with the court now dominated by six Republican presidential appointees, three of them by President Trump, that the court could drastically limit regulators’ authority. 

Nonetheless, some of the Six seem intent on radically beefing up the nondelegation doctrine. This is most evident in Gundy v. U.S. in 2019 where a plurality of the court upheld the delegation to the U.S. attorney general of the authority to require the registration of sex offenders convicted before the  Sex Offender Registration and Notification Act was enacted by Congress in 2006. Justice Neil Gorsuch, in a dissenting opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, argued that giving such broad power to the attorney was delegation “running riot.” Justice Elena Kagan, author of the plurality in Gundy, responded bluntly that “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” That warning applies not just to SORNA, but to many other agencies, including even the Federal Reserve, whose statutory mandate likewise is broad—to assure “stable prices and maximum employment,” terms that Congress has not defined.   

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Here is my point on Gundy(2019) and the non delegation doctrine.
Let us begin with the most important fact. 1. In 2015 Herman Avery Gundy plead guilty in Maryland to sexual assault of a minor. What isn’t mentioned is that Gundy with his plea deal signed a standardized waiver to contest the issue in the present tense AND all future civil activity enacted by Congress on the issue. (the part many criminals -95%- do not contemplate as a potential outcome) In the interim Maryland adopts SOR regime.
So later Mr. Gundy complains about his sex offender registration conviction based on the abstract notion of non delegation doctrine. 2. SCOTUS takes the case granting cert, meaning a valid constitutional question was made salient. (Not unlike the question Connecticut DPS v Doe- no procedural process claim) Upon weighing the question SCOTUS notes the usual chain of command in promulgation of the new law had been followed – Congress passes a bill, Govenor endorsed the law by signature and AG enforced what Congress & Govenor had deemed necessary. It not like the AG has a personal choice in the matter as he\she too must follow the law. And given Maryland had in it’s possession Mr. Gundy’s signature upon the waiver of civil right to contest the issue, hence SCOTUS determined rightly no reasonable AG could not act. Conversly, It might be useful for some to review a similar case which can be found in Kentucky v Pedilla, where fault was found in AGs actions regarding part of the standardized waiver process that was neglected. In Pedilla, the promulgation of the civil deportations regime upon felony convictions was the issue in question. In that case, Mr. Pedilla had not been intelligently informed and consented concerning his individual (potential and highly likely) deportation upon plea by his attorney in the Kentucky case. SCOTUS in Padilla mentioned specifically the civil similarity between deportation regime and sex offender registration regime.

It is interesting considering the delegation topic gets knocked about quite a bit of late with overreaching of powers WRT CDC, POTUS, et al when it came to the pandemic, but yet, they think it is ok for others. I believe it is cherry picking at its finest of what they feel they can do with approval from the public, etc, and not because of being fearful for blow back from the public, etc.

From one year ago, but worth reading:
Reason: A Potential Way Forward for Nondelegation Concerns

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