Presidential Tweets and a SCOTUS Sneak Peek

The most amusing story of the week is the President’s announcement that he plans to live tweet the Democratic Party debates. In anticipation of this, people are already announcing Trump tweet parties, and some are hoping a creative media outlet will do a split screen of the point/counterpoint. Newsweek, of course, wants the media to ignore this spectacle, knowing as they must how devastating this would be to the entire  20 Democratic candidate debate kick line.

At The Federalist Margot Cleveland previews the likely thrust of the tweets and wisely offers this advice:  

Trump can promote his survival of the Deep State’s attempts to undo the election results as one of his greatest accomplishments -- and something it is doubtful any other Republican could have achieved. With a crafty tweet along these lines, Trump can easily parlay the debate into further evidence of the Democrats’ desperation.

While Trump’s top aides reportedly advised the president “to let the Democrats attack each other in the media and onstage while remaining outside of the fray,” in this case, Trump would be best served to ignore the guidance. Just by suggesting he’ll have his smartphone at the ready, Trump has put himself in the head of every Democratic contender.

The candidates must now focus, not just on what one of their primary opponents might say, and to which they will have an opportunity to respond in real time, but also on what the president is tweeting out, unanswered, to millions. Their campaigns are likely now crafting clever one-liners to preempt Trump’s tweets, but as the Republican primaries proved, you can’t beat Trump at his own game, so you’re better off not trying.

Given the number of participants and the likelihood that the moderators  (Savannah Guthrie, Lester Holt, Chuck Todd, Rachel Maddow, and José Diaz-Balart ) will be pitching only softballs, this seems a strategic coup designed to demolish heavily crafted, disingenuous one-liners out of the candidates’ mouths.

Whether or not the President live tweets them, even the Washington Post concedes they will be awful. In the short time available to each candidate  he/she will be desperate to stand out  in a way that reasoned argument could not.

In another development this week, the Supreme Court may be heading toward severely clipping  the power of the administrative state to substitute its legislative agenda for that which constitutionally belongs to Congress. Over the past eight decades Congress has passed barebones legislation, leaving it up to the administrative state (the executive branch) to craft the details to which the courts have deferred.  This week, with Justice Brett Kavanaugh recused from the case, which was heard before his confirmation, the Court came close to questioning the constitutionality of broadly leaving legislative matters to unelected bureaucrats. The case in question is Gundy v. United States, which involved the registration of sex offenders. In an op-ed in the New York Times, Nicholas Bagley, a law professor at the University of Michigan, raised the alarm. 

Mr. Herman Gundy, the plaintiff, questioned whether the Bush and Obama attorneys general had constitutional authority to require him to register for an offense which occurred a year before the statute requiring registration was enacted.

Writing for a four-justice plurality, Justice Elena Kagan disagreed.

In response, Justice Neil Gorsuch wrote a lengthy dissent extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly, two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical opinion. And while a fourth -- Justice Alito -- sided with the more liberal justices, he wrote separately to say, “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else.

Nothing in the Constitution requires that result. The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

That argument, however, may not carry the day. And make no mistake: If the law in Gundy is unconstitutional, then as Justice Kagan wrote, “most of government is unconstitutional.” Alarmingly, a majority of justices on the Supreme Court may not have a problem with that.

It strikes me as odd to argue that requiring Congress to write legislation delegating authority to the executive branch with specificity and within certain boundaries diminishes congressional authority, but then I’m not a law professor. Where else can you argue that delegating away your power is an exercise of it?

SCOTUS blog also was watching this case with interest. Mila Sohoni also saw danger to the delegation doctrine in the dissents to the Gundy ruling.

For the nondelegation doctrine, the significance of Gundy lies not in what the Supreme Court did today, but in what the dissent and the concurrence portend for tomorrow. [snip] Justice Samuel Alito concurred in the judgment only, which both deprived Kagan of a majority and prevented a 4-4 per curiam affirmance. [snip] Gorsuch set out three types of delegations that are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to “fill up the details”; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power, such as foreign affairs.

Gorsuch then pointed to “the evolving ‘intelligible principle’ doctrine” as the explanation for the Supreme Court’s “quiescence” since the 1930s on the delegation front. Gorsuch did not disapprove of the decision in J.W. Hampton, Jr., & Co. v. United States, in which the court announced the intelligible principle doctrine, instead rationalizing it as consistent with older tests; “the [J.W. Hampton] Court’s reference to an ‘intelligible principle’ was just another way to describe the traditional rule that Congress may leave up to the executive the responsibility to find facts and fill up details.” Instead, Gorsuch wrote, it was in the late 1940s that the “mutated version” of the intelligible principle test appeared. In subsequent years, he explained, the court has sometimes reached the right result while applying this test, for example in cases such as Loving v. United States, which involved the president’s independent Article II power. In other areas, he said, other doctrines have picked up the slack: “We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.” Gorsuch cited the major-questions exception and vagueness cases as examples of these “hydraulic pressures” at work.

Gorsuch closed by explaining that SORNA is unconstitutional under this stricter version of the nondelegation doctrine. He argued that SORNA does not involve filling up the details or “deciding the factual predicates to a rule set forth by statute”; nor does it involve an area of “overlapping” inherent Article II authority, such as the field of foreign affairs. Allowing SORNA’s delegation to stand, Gorsuch said, would “invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”

Finally, Alito concurred only in the judgment, saying: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Alito thus indicated that he would be receptive to future nondelegation challenges, but that he was not willing to rule in Gundy’s favor here: “[I]t would be freakish to single out the provision at issue here for special treatment.”

The crux of the issue is clearest  now when much of the administrative state is in clear conflict with the head of the executive branch, as my friend OL notes of the NYT op-ed.

“What the writer fails to grasp, in warning of overturning almost a century of allowing agencies to run wild with broad stroke laws, is that until Trump, those agencies were allowed to be "run" by an elected POTUS who got to act as CEO of all agencies without question.

Denying Trump his executive authorities by injunction or "resistance" makes the "government" answerable to no effective control by any elected official.

Looked at that way, he is damn right that "the entire government" is unconstitutional.”

It will be an interesting development to keep an eye on as Kavanaugh finally takes his place on the panel.

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