In their quest to hand the Trump administration a political defeat on the census, the four liberals Justices unwittingly agreed to lay the groundwork for a new world in which agencies’ explanations receive strict judicial oversight. This change alone would be significant. But couple it with two more June decisions, and this year heralds a renewed conservative judicial attack on the foundations of the administrative state. While these other decisions may not appear monumental, it is their reasoning, rather than their results, that matter.
Take Gundy v. United States, which involved a law that authorizes the attorney general to determine whether certain sex offenders have to register publicly. While unimportant on its facts, Gundy put in doubt similar grants of lawmaking that empower the federal bureaucracy to define, for instance, how clean the air should be or how far cars should go on a gallon of gas. A “nondelegation doctrine” that prohibits the excessive transfer of legislative power to executive agencies has lain dormant since 1937, when Franklin Roosevelt threatened to pack the Supreme Court in order to bully it into upholding the New Deal.
For conservatives committed to the original understanding of the Constitution, such broad transfers of legislative authority violate the separation of powers.