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.

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. President Franklin Roosevelt, his governing agenda under threat, threatened to pack the court. Miraculously, the court would never rule against the New Deal again. Indeed, in the 88 years since, conservative and liberal justices alike have deferred to the division of labor that the political branches agreed to. In the words of Justice Antonin Scalia, “We have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”

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.”

Long-game-playing legal activists are betting that Kavanaugh and Justice Neil Gorsuch, who has made similar rulings, will be more willing than Scalia and others to revisit the old political bargains. With Gundy, who more moderate groups like the American Civil Liberties Union also support for sound criminal justice reasons, they may have found their opening. As awkward as it is for avowed Christian conservative judges to side with a sex offender, the plaintiffs are betting that justices’ dislike of the administrative state is even greater.

Beyond Gundy, waiting in the wings is another major nondelegation case. American Institute for International Steel v. U.S., is a case brought by progressive lawyers on behalf of steel importers upset with the Trump administration's levying of steel tariffs for national security reasons. Like the Adam Walsh bill, the 1962 Trade Expansion Act, which enabled the steel tariffs, delegates substantial authority to the executive branch. Not only does the president get to determine the nature and duration of import restrictions, he is allowed to consider factors such as preserving a stock of experienced steelworkers and “the economic welfare of the nation.” And sure enough, the administration’s argument for the tariffs is not a traditional national security one but is one based more on competitiveness and concern with the health of manufacturing communities.

If Kavanaugh and company side with Gundy, they may well side with the steel group—because both cases would require rolling back 88 years' worth of the same line of precedent. Unsurprisingly, libertarian groups have weighed in on the steel group's case as well with amicus briefs. The upshot: Sex offenders and steel importers may get some relief, but at the risk of giving the conservative legal movement a legal cudgel to weaken ambitious schemes to rebuild our economy and halt the rise of inequality.

A post-Gundy nation may be one in which Congress faces even higher hurdles than those it already faces. Instead of merely having to get a majority of the House, a filibuster-proof Senate majority, a veto-empowered president and aggressive courts on board, lawmakers may have to spell out in excruciating detail how agencies have to do their jobs. Imagine already overwhelmed lawmakers having to micromanage thousands of scientists and financial regulators in between constituent services and fundraising. Not a recipe for success.

While libertarian groups claim to be supporting Gundy and American Institute for International Steel in the name of the rule of law, skeptics can be forgiven for concluding the real aim is fewer laws altogether.

Article originally published on POLITICO Magazine