If you had to list the top five reasons for political polarization and the collapse of American confidence in American government, where would you start? Would you focus on discrete events such as the Iraq War or the Great Recession, or discrete policies such as trade or health care? Would you focus on larger cultural forces, such as the fact that we’re sorting into geographically distinct political and religious enclaves?
All of these factors matter, some a great deal, but let me suggest an underappreciated factor that belongs in that top five. For several generations, Congress — the branch of government closest to the people — has slowly but surely abdicated its role in American constitutional government even as the power of the federal government grew. The American people are increasingly divorced from an increasingly powerful national government.
Here’s the plain truth — if you live in a safe red or blue state, you may never in your entire life cast a single meaningful vote to influence the two most powerful instruments of modern governance, the presidency and the judiciary. You’re left with casting votes for the (unintentionally) weakest branch, a legislature that seems to want to do anything but the job the Founders gave it.
Enter Justice Neil Gorsuch, one-man warrior for the constitutional order.
Yesterday, Justice Gorsuch struck his latest blow against a lazy and ineffectual Congress with an opinion that began like this: “In our constitutional order, a vague law is no law at all.” Writing for a five-justice majority (he joined the court’s liberal wing), Justice Gorsuch declared unconstitutional a federal statute that “threatens long prison sentences” on individuals who use firearms when committing crimes “that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
The problem with the language was obvious, it “provides no reliable way to determine which offenses qualify as crimes of violence.” In essence, Congress simply waved its hands at a problem, went home to declare that it was tough on crime, and left the executive and the judiciary to work out the details. That’s not the way the law is supposed to work, especially when a person’s liberty is at stake.
But that’s not the only case this term where Justice Gorsuch sent a shot across Congress’s bow. In Gundy v. United States, he joined with justices Thomas and Roberts to send a clear signal that the Court may be ready to resuscitate something called the “nondelegation doctrine.” In essence, the doctrine holds that there are some jobs that only Congress can do. Like, for example, writing criminal statutes.
Gundy was complicated, and Gorsuch lost (for the moment), but it heralded a potential major correction in American constitutional jurisprudence. The case was argued before Brett Kavanaugh’s confirmation, so only eight justices participated. At issue was a provision in the 2006 Sex Offender Registration and Notification Act that granted the attorney general the authority to “specify the applicability” of SORNA’s registration rules to people who committed relevant crimes before the statute was enacted. In essence, it delegated to the attorney general the ability to write his or her own rules restricting the liberty of individuals swept up within the broad scope of the statute.
Justice Alito joined a 5–3 majority upholding the delegation at issue, but he wrote a separate concurring opinion indicating that he was not happy about it. “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years,” he said, “I would support that effort.” But in the absence of that majority (remember, only eight judges decided the case), he concurred in the result only — denying Justice Kagan’s opinion any meaningful precedential authority.
But the real legal action was in Justice Gorsuch’s dissent. It began, as his opinions so often do, with a ringing declaration of principle and purpose:
The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?
What followed was a lesson in American constitutional history in which Justice Gorsuch painstakingly noted that the Framers predicted exactly the constitutional malady that afflicts the United States, where all too often “legislation [risks] becoming nothing more than the will of the current President.”
There is great power in Justice Gorsuch’s consistency. The ideological alignment of the decision matters not. The commitment to constitutional order is paramount. And a fundamental facet of that constitutional order is Congress’s nondelegable duty to write laws that clearly and constitutionally specify Americans’ legal obligations.
That’s a duty that Congress has shirked for decades. Thanks in large part to Justice Gorsuch, it is now being dragged back into its proper constitutional prominence — whether it likes it or not.
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