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.
Given this base rate, which is subject to the usual base-rate neglect on the part of overexcited commentators, I’m somewhat less in a tizzy about the Court’s decision today in Gundy v. United States than many others seem to be, whether the particular tizzy carries a happy affect or an appalled one. Gundy, of course, upheld the federal sex offender registration statute against nondelegation challenge, by a fractured vote; everything else is extrapolation.
The case for excitement is that if one adds Justice Alito, in concurrence, to the three dissenters (the Chief Justice, Justice Thomas, and Justice Gorsuch, who wrote); and if all of those four adhere to their views in the future; and if Justice Kavanaugh, who didn’t participate in the decision, joins them on some unspecified occasion; then there would be five votes to reject the prevailing “intelligible principle” test and therefore (?) start invalidating important federal statutes.
Quite a few ifs in this chain, however. Note that because of the logic of compound probabilities, even if each one of the links, taken separately, is more likely to hold than to break, the necessary conjunction of all of them may be quite unlikely.
So which link in the chain might fail? Several seem weak. The role morality of Chief Justices, in this case Chief Justice Roberts, is that they tend on average to be concerned above all with preserving the Court’s institutional position and the larger stability of constitutional arrangements. What they will say in a safe dissent or concurrence may be very different than what they will actually do. It by no means entails they will provide the fifth vote to do something very dramatic. Furthermore, it is by no means certain that even a change in the prevailing doctrinal test will translate to a change in adjudicated outcomes. Consider Heller’s seemingly revolutionary reinvigoration of the Second Amendment, which to date has not translated into major invalidations. Sometimes, the test changes but the results do not, or at least not to any important degree.
In many ways, Gundy represented the easiest possible case for constitutional invalidation: a low-stakes statute involving a “tail issue” of registration for past offenses, and a criminal-ish statute to boot. Both of those factors supported invalidation, the former because the low stakes would have avoided any immediate, serious destabilization effect, the latter because criminal law is plausibly an area where legislatures have special responsibility to articulate statutory standards. And yet, even here, the Court’s uniform practice of rejecting nondelegation challenges held. One suspects that as the stakes increase in future cases, as the consequences of casting the fifth vote to destabilize the administrative state focus the judicial mind (especially the mind of the Chief Justice), the likelihood of invalidation will fall correspondingly. Or so the safe bet seems to me. Put not your faith in the Second Coming of the Original Constitution.