The prohibition on the delegation of legislative power to the executive is one of the key structural features of the Constitution’s original meaning.

The prohibition prevents the legislature from passing a law that authorizes the executive (instead of the legislature) to make the basic policy decisions in an area. The prohibition thus makes it harder for the legislature to abdicate its responsibility for passing laws and transfer that task to administrative agencies, who are not politically accountable. Unfortunately, the Supreme Court has not been enforcing the prohibition on delegation since the New Deal, which has been one of the reasons the Administrative State has grown so large.

Last week, the Supreme Court had the opportunity to start the process of restoring the prohibition on delegation. In Gundy v. United States, the Court reviewed a delegation of discretion to the Attorney General concerning the registration of sex offenders. Although there was good reason to believe that five members of the Court would have supported a revival of the prohibition, that revival nonetheless came up short.

In Gundy, the Court upheld in a 5 to 3 decision the delegation of discretion to the Attorney General. The four progressives voted to uphold the traditional non-enforcement of the prohibition on delegation. Although Justice Alito provided the fifth vote to uphold the delegation, he did not join Justice Kagan’s opinion for the progressives. Justice Gorsuch, writing for Chief Justice Roberts and Justice Thomas, dissented, arguing that the delegation should be struck down as unconstitutional.

Justice Gorsuch’s dissent on the non-delegation doctrine was a tour de force. He analyzed the Sex Offender Registration and Notification Act (SORNA), which delegated to the Attorney General the authority to determine whether sex offenders who were convicted prior to the Act were required to register for it. Gorsuch showed that the statute gave the Attorney General largely unlimited discretion to decide whether these sex offenders needed to register, which of these sex offenders needed to register, and to what extent they needed to do so.

Justice Gorsuch explained that delegations had been largely limited prior to the New Deal, and that the Supreme Court had struck down two significant delegations during the New Deal, but then radically changed course. Since the New Deal, the Court has approved every delegation it has considered, however broad the delegation was, always concluding that it satisfied the Court’s intelligible principle test for delegations. Most importantly, though, Gorsuch discussed the Constitution’s original meaning, making a strong argument that the Constitution prohibits Congress from delegating legislative power to the executive.

What is so frustrating about the case is that it is likely that Justice Gorsuch’s dissent could have been a majority opinion. Justice Kavanaugh, who did not participate in the case because it was argued just prior to his confirmation, is thought to be pretty strict on limiting the Administrative State and therefore might have agreed with the three right wing justices. Justice Alito, who voted with the progressives, indicated in his separate concurrence that he would be willing to revisit and cut back on the constitutional permissibility of delegation, but only if a majority of the Court were willing to do so. Since Justice Kavanaugh was not participating, Justice Alito voted to apply the existing non-delegation doctrine.

What a missed opportunity! The non-delegation doctrine is important. It is one of the areas where the New Deal Court eviscerated constitutional restraints on government. At present, there are no real limits on delegations, but new limits—depending on how strongly they would be applied in practice—could be quite significant. By requiring that Congress make the basic policy decisions, a reinvigorated non-delegation doctrine would guarantee that those policy decisions have the support of a broad array of political actors (both houses of Congress and the President or a supermajority of each house necessary to override the President’s veto), which would help ensure that they are both desirable and reflect the values of the people.

The New Deal’s abandonment of constitutional restraints have been at least partially reversed in several areas, but sadly not for delegations of legislative power. First, in the 1976 case of Buckley v. Valeo, the Court started to enforce the separation of powers as to appointments and then in INS v. Chadha in 1982 the Court took seriously the Constitution’s bicameralism and presentment requirements. As a result of these early cases, we now have a reasonably developed separation of powers that places some limits on the Administrative State.

It took another generation until the Court started to enforce Commerce Clause restrictions that were abandoned during the New Deal. The revival began in US v. Lopez in 1995. While Lopezwas cut back in Gonzales v. Raich, this line of cases still allowed the Court to hold a part of Obamacare unconstitutional under the Commerce Clause in NFIB v. Sebelius in 2012 (and helped the Court strike down a coercive portion of Obamacare’s exercise of the spending power as well).

But unlike in these areas, the Court has not been willing to cut back on the excessively lenient non-delegation doctrine. After two significant delegations were struck down during the New Deal, the Court has never again enforced the doctrine, even though there have been enormous delegations.

So there was not a moment to waste. But, unfortunately, the Court did just that. The most obvious point is that if four justices favored cutting back on permissible delegations and four justices did not, the Court should have had the case reargued so Justice Kavanaugh could cast the deciding vote. But the Court did not do so, and it was not clear why. There appears to be some mystery about when the Court will choose to have a case reargued. In the past, the Court has sometimes reargued cases where the vote was split 4 to 4 and the newest justice had not participated in the previous argument. In fact, the Court did this in the recent property rights case of Knick v. Township of Scott and it did so in the past when Justice Alito and Justice Kennedy came on to the Court. It is a serious problem that the Court did not do this in the present case.

It is especially problematic that Justice Alito voted with the progressives in Gundy. The SORNA delegation was one of the best vehicles for reexamining the non-delegation doctrine available.  SORNA imposed a criminal sanction for failing to register and it established no standard at all governing the exercise of the Attorney General’s discretion. If Justice Alito had simply joined Justice Gorsuch’s opinion, then the court would have been split 4 to 4 on the issue. And then a new case challenging the delegation under SORNA could have been brought to the Court, which would have allowed Justice Kavanaugh to participate. Now, it seems quite unlikely that the Court will take a SORNA case, since that would require the Court to reverse a recently decided precedent concerning the statute.

The right wing Justices seemed to have all of the pieces in place to reverse one of the most destructive aspects of the New Deal. And they blew it. The mere 5 to 4 majority that these Justices enjoy might be just one death or retirement away from becoming a minority.  Moreover, successfully reviving the delegation prohibition is likely to take more than a single case. These Justices acted as if they have all of the time in the world to restore the prohibition. They do not.

This post was originally published at The Originalism Blog, and is re-posted here with permission.

Michael Rappaport