Alito suggests chance to rein in agency power

By Mark Sherman
Associated Press

WASHINGTON (AP) — With one sentence, Justice Samuel Alito recently signaled his willingness to throw out the Supreme Court’s 84-year-old record of support for the broad powers of federal agencies, which reaches back to the New Deal.

Alito’s comments and a dissenting opinion from another three conservative justices cheered people who have long dreamed of using the courts to rein in unelected bureaucrats.

At the same time, his statementworried those who fear the court’s conservative majority will make it harder to enforce environmental and public health laws.

The opinions came in a case in which the court was being asked to strike down a provision of the federal sex offender registration law on the argument that Congress gave too much power to the Attorney General to decide who should have to register.

Under the Constitution, Congress makes the laws and can’t delegate that authority to the other branches of government.

At the same time, since the New Deal the court has allowed Congress to give executive branch agencies wide latitude in putting laws into effect.

“Although Congress can’t delegate its authority to make laws, it can give executive agencies substantial discretion to implement and enforce the laws. And that is what happened here,” Justice Elena Kagan said in a summary of her opinion for four justices supporting the “substantial discretion” given to agencies.

The last time the court invoked what is known as the non-delegation doctrine to strike down a federal law was in 1935.

Alito did not join Kagan’s opinion, but he sided with the outcome and provided the fifth vote to form a majority of the court.

“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. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment,” Alito wrote in a three-paragraph opinion.

Justice Neil Gorsuch wrote in a dissenting opinion joined by Chief Justice John Roberts and justice Clarence Thomas that he would have struck down the provision at issue.

Justice Brett Kavanaugh did not participate in the case because he had not yet been confirmed when it was argued in early October. But Kavanaugh has written opinions as an appellate judge that criticized federal agencies for exceeding their authority to regulate.

His words were music to the ears of conservative and libertarian scholars. 

“Gorsuch’s and Alito’s opinions together are nothing short of an open invitation to litigants and lower court judges to present cases to the high court that could fully reinvigorate the non-delegation principle in the foreseeable future,” said Todd Gaziano of the Pacific Legal Foundation, a not-for-profit law firm that says it works to curb government overreach and abuse.

For Nicholas Bagley, an expert on health care policy and administrative law at the University of Michigan law school, the prospect of a Supreme Court majority to breathe new life into the concept is worrisome.

“It may seem a little abstract, but it goes to the vitality of the United States government going forward,” Bagley said.

Health and environmental regulations might be prime targets of those who want to cut back on agency power, Bagley said.

That might be a particular problem when Democrats control the White House. But in the short term, some challenges to Trump administration policies, including the imposition of tariffs on imported steel, claim that Congress unconstitutionally delegated too much power to the chief executive.

“Certainly liberals fear the doctrine more because they see it as a threat to agency regulatory authority. I’m not so sure their fears are justified. I also think that in the short run, a reinvigoration of the doctrine could certainly constrain President Trump,”  Case Western Reserve University law professor Jonathan Adler wrote in an email.