How a Sex Offender's Case Before the Supreme Court Could Bring Down the Administrative State

[riversedge]

How a Sex Offender's Case Before the Supreme Court Could Bring Down the Administrative State

It has nothing to do with sex and everything to do with presidential power.


https://www.politico.com/magazine/story/2019/06/02/supreme-court-gundy-rapist-227038

By TODD TUCKER

June 02, 2019



Herman Gundy was out on supervised release in 2004 from a 1996 crack distribution conviction when he met an 11-year-old girl. He served her cocaine and raped her.

As soon as Monday, the Supreme Court will rule on his fate.

While court-watchers have been focused on other headline issues the court may decide this term—including cases on abortion, citizenship questions on the Census, and partisan gerrymandering—the Gundy case could mark a watershed of its own. At issue isn’t the lurid crime itself, but just how much power Congress can delegate to the executive branch.

Along with a new trade-related case the court may choose to take up in the coming weeks, it’s part of a campaign to use the courts in service of a libertarian rollback of the administrative state. And a nation in which both Gundy and American Institute for International Steel (the trade case) go against the government could look very different.

Gundy has become a cause célèbre among libertarian legal activists, who see in his case an opening they’ve long sought. The question before the court turns on whether Congress delegated too much of its legislative power. It concerns the 2006 Adam Walsh Child Protection and Safety Act—under which Gundy was convicted—a law named after the kidnapped and murdered child of “America’s Most Wanted” host John Walsh and which established detailed instructions for state governments to maintain sex offender registries. For sex offenders whose original offenses and convictions came before the law was enacted Congress opted to let the Department of Justice set up detailed rules for those registries.

This is where the libertarians and their lawyers have pounced: They argue that Gundy’s case is emblematic of a government that concentrates too much decision-making power in the hands of bureaucrats not directly accountable to the people. Gundy ran afoul of these rules when he did not register while living in a New York halfway house. He was rearrested, put on supervised release and ordered to register. If the underlying law were unconstitutional, then Congress would have to rewrite the law or he might skirt registration requirements in the future.

In a series of amicus briefs in his support, groups with names like DownsizeDC.org and Gun Owners of America,which considers itself even more hard-line on gun rights than the NRA, have cited everything from the Bible to the French philosopher Montesquieu in their efforts to attach the convicted rapist to a holy crusade for liberty from government interference.


This is part of a long argument over just how much power Capitol Hill can hand over to presidents. For adherents of the “nondelegation doctrine"—people who believe that any kind of law like this is an invitation to overreach by a bloated executive branch—Article 1, Section 1 of the Constitution vests Congress with “all legislative powers.” This power is unalienable, meaning Congress can’t decide to let courts or agencies make law. Nonetheless, the line is blurry between law-writing, law-enforcing and law-interpreting.

The Supreme Court has only twice struck down laws under the so-called nondelegation doctrine—both times in the 1930s, reining in FDR’s New Deal. In Panama Refining Co. v. Ryan in 1935, the justices deemed that a New Deal oil conservation law provided “no criterion to govern the President’s course.” Five months later, in Schechter v. U.S., a unanimous ruling by liberals and conservatives on the bench found that New Deal “fair competition” codes for industry lacked “any adequate definition of the subject to which the codes [were] to be addressed,” allowing the president to restructure the whole economy............................

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Libertarian organizations dislike this deference. What they’d prefer is a regime in which Congress kept the power over the nitty-gritty of executing laws—which would mean, to their delight, lawmaking would basically screech to a halt in a morass of tiny details. This would make it nearly impossible for Congress to write rules for the economy. One of their strongest likely allies is the newest justice, Brett Kavanaugh, a member of the Federalist Society. As he has written in a lower court case against the Environmental Protection Agency, “Congress’s failure to enact general climate change legislation does not license an agency to take matters into its own hands, even to solve a pressing policy issue such as climate change.”........................

[uriel1972]

1. great move, libetarians...

Championing a rapist of an 11 year old. Couldn't they find something better to champion their cause over?

[dixiegrrrrl]

2. This is gonna be an important case, obviously.

At first blush, the idea of having the law making people answerable to the voting public, seems fair and equitable.
But then there is a quick dive into the devil and the details.

one devil is that they are asking the Supreme Court to rule against itself, since SCOTUS decisions can be viewed as law making, especially in cases where the predicate act is so far removed from what the appeal is based on, as in this case.