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Saturday, June 22, 2019

Gundy, Constitutional Coalitions, and the Credible Commitment Problem of Constitutional Doctrine

Gerald’s analogy between Gorsuch’s dissent in Gundy v. United States and United States v. Lopez strikes me as exactly right: There is a high probability that the SCOTUS will, some time in the near future, strike down some statute as a way of sending the message that the Non-Delegation Doctrine remains a part of the judicially enforced Constitution — but that opinion will later be quietly nullified by lower courts just as Lopez itself was quietly nullified prior to Raich — with the SCOTUS’s tacit blessing of repeated cert denials. As Gerald notes, the problem is that “it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations.”

Put another way, the “intelligible principle” doctrine violates itself: It lacks any intelligible principle. As I wrote last year, “SCOTUS would have to be immune to irony to confer on itself unbridled judicial discretion to decide whether an agency has unbridled executive discretion.”

The problem with unintelligible doctrines like the “intelligible principle” doctrine is coalitional instability. As I suggested in a different context back in 2015, “neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes.” Aided by a swing vote in the center, liberals plus the swing vote will invoke the mushy doctrine against conservative statutes; conservatives (plus the swing) will invoke it against liberal ones, and the doctrine itself will become little more than a marker for the essentially legislative discretion of the SCOTUS. On this coalitional view of constitutional doctrine, Justice Alito is correct to note how “freakish” it is to invoke a mushy doctrine like the NDD as a way to induce Congress to write clearer statutes. Why would a closely divided Congress that cannot agree on crisp statutory language be averse to delegating difficult questions to a closely divided SCOTUS that cannot define a clear NDD? If the NDD empowers the swing vote on SCOTUS to rule on the statute’s validity, then vague delegations become a rational insurance policy for swing members in Congress elected from purple districts where any plain roll call votes could arouse the ire of either extremist primary voters or general election median voters. Why not duck the blame by adopting vague language the constitutional sufficiency of which will be decided by a reliably moderate SCOTUS swing vote?

By fostering the sort of coalitional instability in SCOTUS that a delegation-prone Congress would want to exploit, the Non-Delegation Doctrine actually undermines its own goals. That’s why I agree with Gerald’s prediction that the NDD will never have real bite: It is hard to believe that Chief Justice Roberts, SCOTUS’s likely swing vote, will, in the long run, want to take the blame for striking down unintelligibly vague statutes with an unintelligibly vague doctrine.

Posted by Rick Hills on June 22, 2019 at 10:25 AM | Permalink


Marty, I am not sure that Gorsuch’s principle is any less vulnerable to the problem of coalitional instability than the Intelligible Principle doctrine. The Gorsuch principle is still too vague to anchor a stable majority, because the doctrine can be turned on and off opportunistically in ways that could frustrate the non-legal ideology of each justice without actually advancing any larger institutional goal. But this looks like the topic for a follow-up post.

Posted by: Rick Hills | Jun 23, 2019 9:54:18 AM

What's alarming about the Gorsuch opinion, though, Rick, is not that he would call more things "unintelligble," but that he would jettison the "intelligible principle" doctrine altogether, and invalidate delegations because they're too broad, even if they're not vague. (That is to say, he could've simply endorsed Rehnquist's view in the Benzene case, but decided to go much further.) I *hope* Roberts wouldn't go for that when push comes to shove . . . but who knows?

Posted by: Marty Lederman | Jun 23, 2019 5:41:41 AM

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