I’m guessing most people were disappointed by the major opinions last Thursday from the Supreme Court (Gundy v. United States on non-delegation and American Legion on establishment). Neither resolved much of anything.  The silver lining, I suppose, is that originalist progress may still be possible.

(A) In the American Legion case, pretty much everyone seems to agree that the Court’s approach to establishment clause cases lacks coherence.  One might therefore think that developing a theory of the original meaning of the establishment clause would be a good place to start.  But the Court’s multiple opinions in the case don’t make any progress.  (Ed Whelan has a good summary here at Bench Memos).  The majority says the memorial cross at issue in the case doesn’t violate the establishment clause because it’s old.  I do not understand this at all — either the clause allows municipalities to display large crosses in major highway intersections or it doesn’t.  The Court’s explanation seems mostly pragmatic (and, as Justice Gorsuch says in concurrence, subject to substantial line-drawing problems: how old is old enough?).  Justice Thomas in concurrence is the only one to grapple with the original meaning, and he largely repeats points he’s made before.  Also, Thomas is distracted by his somewhat idiosyncratic view (even among originalists, I think) that the establishment clause isn’t incorporated against the states.  Perhaps it isn’t, but precedent plainly says it is, and I don’t think Thomas has shown that precedent to be “demonstrably erroneous.”

This all seems a mess to me, but the silver lining is that it seems self-evidently a mess, so perhaps the pressure will remain to clean it up.  Also, congratulations to my colleague Steven D. Smith, whose article — saying that the establishment clause cases are a mess — was cited approvingly by the majority.  (Depressingly, that article was written in 1986).

(B)  At first glance Gundy v. United States looks even worse: the Court rejects a nondelegation doctrine challenge to a law giving effectively unlimited discretion to the President, and apparently thereby foreclosing any hope of reviving originalist constraints on delegation.  But it’s not as bad as it seems.  With only 8 Justices voting (it was argued before Justice Kavanaugh joined the Court), there were three clear votes to revisit the doctrine (Justice Gorsuch’s originalist dissent, joined by Chief Justice Roberts and Justice Thomas).  Four were opposed.  Justice Alito could have made it an evenly divided court, but he concurred separately to uphold the statute.  Here’s the concurrence in full:

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid.

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment. Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

This sounds like an invitation to try again once Justice Kavanaugh can break the tie.  (Of course, we don’t know what he thinks but there are reasons for optimism.)  To me, the most significant point is that the Chief Justice joined Gorsuch’s dissent — previously, I think it was far from obvious that he would support a re-thinking of the nondelegation doctrine.

Ilya Somin has a somewhat optimistic take here: A Troubling Supreme Court Decision on Non-Delegation.  Adrian Vermuele has a more cynical (but sadly realistic) take at Notice and Comment blog, Never Jam Today, which begins:

Ever since I started law school in 1990, almost thirty years ago, I’ve been hearing that the Court’s libertarian-legalist conservatives would definitely invalidate some statute or other on nondelegation grounds, any day now, without question. This eschatological hope isn’t some recent development. It’s the ordinary state of conservative jurisprudence, the perpetual “Soon! But not yet” of conservative constitutional parousia. At a certain point, one saw a sign in the East — Justice Rehnquist’s concurrence in the Benzene case, combined with certain dicta in the majority opinion! At another point, one saw a portent in the West — Justice Scalia’s powerful dissent in Mistretta! And at every one of these points, people insisted that this time it’s all different, the ground is shifting, it’s really happening!

And yet somehow, when push came to shove, when it was a question of actually assembling five votes to declare a federal statute unconstitutional on grounds not invoked for decades, grounds that would threaten to destabilize much of the modern administrative state — when it came time to act, as opposed to venting one’s constitutional frustrations in concurrence and dissents — well, it never did quite happen. Justice Scalia’s Mistretta dissent became his brusque opinion in Whitman v. American Trucking, sweeping aside a serious nondelegation challenge to the Clean Air Act. Jam yesterday (yesterday being 1935), and jam tomorrow, but never jam today.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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