Posted on 06/22/2019 3:17:58 AM PDT by reaganaut1
In eighth-grade civics, students learn that Congress makes the law, the executive enforces the law, and the judiciary interprets the law. The Founders designed this separation to prevent one branch from getting too much power and threatening liberty. Yet in today’s sprawling administrative state, things aren’t so simple. Too often Congress passes laws stating vague objectives and leaves it to executive-branch officials to work out the controversial details—the real work of legislating.
The courts have been reluctant to police this blurring of legislative and executive authority, but that may be changing. In Gundy v. U.S. on Thursday, three of the Supreme Court’s conservatives showed an appetite for rejuvenating the “nondelegation doctrine,” which holds that Congress cannot under the Constitution delegate legislative power to another body.
The conservatives lost 5-3, but their dissent is significant because Justice Brett Kavanaugh didn’t participate in the case, and Justice Samuel Alito concurred in the judgment but without endorsing the logic of the majority opinion. This suggests that the next time the nondelegation issue reaches the Court, five Justices could be prepared to strike a blow for the separation of powers, helping to restore the constitutional structure of American governance.
The “delegation” in Gundy arose from the 2006 Sex Offender Registration and Notification Act. The bill requires sex offenders convicted after its passage to register with state and federal governments and sets up a process for doing so. But for offenders convicted before 2006, the law is vague, leaving registration requirements up to the Attorney General.
Herman Gundy pleaded guilty to a sex crime in 2005. After his prison sentence he was charged with failure to register in accordance with the Attorney General’s requirements. He argued that the decision of whether and how he must register could not be permissibly delegated to the AG.
(Excerpt) Read more at wsj.com ...
If we combine lawmaking with adjudicating and then add punishing, we have the worst conceivable violation of the principle of separation of powers and a sure path to tyranny.
We are entitled to have our laws made by article 1 Congress, our crimes prosecuted by article II executive, our guilt and punishment adjudicated by an article III court.
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