Alito Teases a Judicial Revolution

His concurrence suggests the dissenters will soon prevail in restoring the ‘nondelegation’ doctrine.

The Supreme Court’s decision last week in Gundy v. U.S. was deceptively anticlimactic. The vote was 5-3, but there was no majority opinion and the decision made no new law. Justice Samuel Alito’s lone concurrence, however, suggested that a major break with precedent—and a return to the Constitution’s original meaning—will soon be in the offing.

The Constitution’s first clause after the Preamble states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since 1935 the justices have ignored that provision and permitted lawmakers to delegate their authority to the executive branch. At issue in this case was a provision of the Sex Offender Registration and Notification Act of 2006, or Sorna, that directed the attorney general to “specify the applicability” of the law’s registration requirements to offenders, like Herman Gundy, whose crimes predated the act. Mr. Gundy, who was sentenced to 10 years in prison for failing to register, claimed this delegation was illegitimate.

The case was heard four days before Justice Brett Kavanaugh’s confirmation. Had Justice Alito dissented, the resulting 4-4 split would have upheld the lower court’s ruling against Mr. Gundy without any opinion being issued. Instead, Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “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.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.

In their quest to control governmental power and protect individual liberty, the Framers separated federal power among three branches of government. As Justice Gorsuch notes, they also “went to great lengths to make lawmaking difficult,” requiring consent of both houses of Congress and the president, or legislative supermajorities. The veto was the executive branch’s only role in the legislative process.

That was deliberate. Justice Gorsuch quotes Montesquieu, who was quoted by James Madison in Federalist No. 47: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

For more than a century after its creation, the high court actively policed the separation of executive and legislative powers, requiring Congress to make the hard, politically risky policy decisions and permitting only limited delegation of operational details. But in the 1930s, under pressure to uphold the vast delegations of the New Deal, the justices changed course and held that delegation was permissible so long as an “intelligible principle” could be discerned to govern how that power was exercised.

Gundy offered an excellent opportunity to begin reasserting the original constitutional design. Sorna’s delegation of power was extreme. While setting up an elaborate registration system for sex offenders convicted after its enactment, the law granted the attorney general “authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” A single official in the executive branch was given the power to impose requirements carrying severe criminal penalties on more than 500,000 Americans, and then to carry them out.

Justice Elena Kagan, who wrote the plurality opinion, struggled mightily to find an intelligible principle. She wrote that the court had interpreted Sorna as requiring applicability “to all pre-Act offenders as soon as feasible.” But as Justice Gorsuch noted, that language appears neither in the statute nor in the Justice Department’s implementing regulations.

I Think I’m Going to Kathmandu, Say the Chinese

If things go as planned, one day soon Chinese trains will pull into Kathmandu, Nepal, on a new railroad built to lessen the landlocked Himalayan country’s dependence on India.

.. It’s time to acknowledge that in raw economic terms China has comprehensively outpaced India. If winning regional influence depends on building ports and railroads abroad, or dazzling visitors with skyscrapers and broad boulevards at home, then India’s prospects look bleak.

Compared with China, however, India remains a bastion of free speech, minority rights and judicial independence. New Delhi ought to play to these traditional strengths by deepening them.

..  On Monday, China blocked HBO.com after comedian John Oliver ran a segment that discussed Mr. Xi’s alleged touchiness about his purported resemblance to Winnie the Pooh.

..  it wasn’t always a certainty that China would pull ahead. According to the World Bank, as recently as 1990 India’s per capita income ($364) was higher than China’s ($318). Paradoxically, China’s communists unleashed market forces more effectively than their democratically elected counterparts in India.

.. Four years ago, Mr. Modi looked set to enact the sweeping reforms India needs to eradicate poverty and catch up with China. But despite a few successes, such as a national goods and services tax and a bankruptcy law that makes it easier to exit a failed business, the Indian prime minister disappointed. He more resembles his lackluster socialist predecessors than a market-friendly East Asian leader.

.. India’s archaic labor laws suppress job growth by making it extremely hard to fire workers during a downturn.

.. With a per capita income of $8,100, the average Chinese is nearly five times as rich as the average Indian. The gap has widened over the past 10 years.

..  48 of the world’s 100 tallest buildings are in China. None are in India.

.. the ruling Bharatiya has earned a reputation for intimidating reporters with massive lawsuits, pressuring media barons to sack unfriendly editors, and using lap-dog television channels and a vicious troll army to smear political opponents.

.. India’s constitution guarantees religious freedom, but Mr. Modi often remains distressingly silent when Hindu mobs lynch innocent Muslims on suspicion of killing a cow.
..  But the government has taken to stalling the appointment of senior judges it does not approve of, raising fears that it will chip away at judicial autonomy.

 

Donald Trump: Middle-American Radical

Trump, he writes, “would more accurately be described as a ‘radical anti-progressive’” who is “at war with the progressives who have co-opted American civil society.” Moreover, Trump “is willing to go further than any other previous conservative to defeat them.”

.. “Radical anti-progressives” recognize that many institutions—the academy, media, entertainment, and the courts—have been co-opted and corrupted by the left. And as these institutions are not what they once were, they no longer deserve the respect they once had.

.. Trump sees many institutions as fortresses lately captured by radical progressives that must be attacked and besieged if they are to be recaptured and liberated. Cannon deals with three such politicized institutions: the media, the NFL, and the courts.

.. Trump does not attack freedom of the press but rather the moral authority and legitimacy of co-opted media institutions. It is what CNN has become, not what CNN was, that Trump disrespects.

.. These people are political enemies posturing as journalists who create “fake news” to destroy me

.. Before 2016, the NFL was an untouchable. When

  • the league demanded that North Carolina accept the radical transgender agenda or face NFL sanctions, the Tar Heel State capitulated. When
  • Arizona declined to make Martin Luther King’s birthday a holiday in 1990, the NFL took away the Super Bowl. The Sun State caved

.. Trump delivered a full-throated defense of the flag and called for kicking the kneelers off the field, out of the game, and off the team.

“Fire them!” Trump bellowed.

.. Before Trump, the FBI was sacrosanct. But Trump savaged an insiders’ cabal at the top of the FBI that he saw as having plotted to defeat him.

.. Trump has not attacked an independent judiciary, but courts like the Ninth Circuit, controlled by progressives and abusing their offices to advance progressive goals

.. it let the Supreme Court seize its power over social policy and convert itself into a judicial dictatorship.

.. Trump instead seeks to fight and delegitimize any institution the Left has captured, and rebuild it from the ground up.”

.. Trump supporters who most relish the wars he is waging are the “Middle American Radicals,”

.. After World War II, as it became clear that our long-ruling liberal elites had blundered horribly in trusting Stalin, patriots arose to cleanse our institutions of treason and its fellow travelers.

.. The Hollywood Ten were exposed and went to jail. Nixon nailed Alger Hiss. Truman used the Smith Act to shut down Stalin’s subsidiary, the Communist Party USA. Spies in the atom bomb program were run down. The Rosenbergs went to the electric chair.

.. Liberals call it the “Red Scare.” They are right to do so.

For when the patriots of the Greatest Generation like Jack Kennedy and Richard Nixon and Joe McCarthy came home from the war and went after them, the nation’s Reds had never been so scared in their entire lives.

Trump’s Tool Kit Does Not Include the Constitution

a survey of 2000 voters that shows public faith in 27 key democratic principles — ranging from the independence of the judiciary to constitutional limits on executive power — has declined across the board.

.. from September 2017 to January 2018, voters’ assessments of the ability of the courts, Congress and the Constitution to “effectively check executive power dropped by 7-8 percentage points.”

.. If scholars are right that erosion proceeds on a piecemeal basis, and that the first steps often entail targeting democracy’s “referees,” then our results regarding declines in judicial independence and support for a free press are especially disturbing.

.. On Monday, he charged that Democratic members of the House and Senate were treasonous in their failure to applaud him during his State of the Union address. In a speech in Blue Ash, Ohio, Trump described how he saw it:

You’re up there, you’ve got half the room going totally crazy, wild — they loved everything, they want to do something great for our country. And you have the other side, even on positive news — really positive news, like that — they were like death and un-American. Un-American. Somebody said, “treasonous.” I mean, yeah, I guess, why not? Can we call that treason? Why not?

.. Iyengar posed the following hypothetical:

Let’s assume that Mueller uncovers evidence of collusion and close associates of the Prez are implicated. Republicans are likely to deny the validity of the charges on the grounds that the investigators are biased and Republicans in Congress, as they’ve repeatedly demonstrated, will stick by Trump since the base is with him. Trump, of course, will continue with the ‘hoax’ narrative, and his surrogates in the media will be only too happy to back him up. At that point, we will have a very real threat to the rule of law.

.. Trump’s attacks on the F.B.I. are a case study in his polarization strategy. Since its founding in 1908, the F.B.I. has had substantial popular support, especially among Republicans.

.. Polarization by party identity is so powerful at the moment that most voters see the world through thick red and blue lenses. Almost everything is politicized. And, in almost every study I have run, I find that Republicans are more intense partisans than Democrats on average. We’ve seen partisanship color Republican evaluations of the FBI (negatively) and Russia and Putin (positively).

..  Trump has a negative 40-55 percent approval rating, but it’s “his best overall score in seven months.”

.. Seventy percent of voters described the economy as excellent or good, the highest since 2001

.. in politics, “what matters in the economy is real disposable income over the 6-12 months before an election.”

.. the future of democracy in America during the Trump administration depends as much or more on unemployment, take home pay, the Dow Jones industrial average, tax rates and the gross domestic product as on principled support for the rule of law.

.. as the investigation by the special counsel, Robert Mueller, continues to pursue lines of inquiry reaching deep into the White House, Trump will have plenty of opportunities in the near future to push the envelope on the rule of law.

.. I see the Democrats poised right now to make net gains of about 10 to 14 seats. They need 25 or so depending on vacancies.

..  Franklin Roosevelt’s seeking of a third (and then a fourth) term is among the most important norm violations in American political history. He hadn’t been dead for two years before both chambers of Congress proposed the 22nd amendment to limit presidents to two terms.

.. After Lincoln’s use of emergency powers to flex presidential power in ways not previously seen, Congress fought back against his successor, Andrew Johnson. More of his vetoes were overridden (15) than for any other president and Congress limited presidential influence over executive branch employment by passing the Tenure of Office Act (1867).

.. Trump won the Republican nomination and the presidency by conducting a campaign directly challenging the notion that the electorate will punish a politician for “violating accepted constitutional arrangements.”

.. If Republicans retain control of both branches of Congress in 2018 — even if by just one vote in the House and a 50-50 split (with Vice President Pence the tiebreaker) in the Senate — Trump will claim vindication. His assault on the pillars of democracy will continue unabated, with increasingly insidious effect.