Analysis: How a sex offender's case before the Supreme Court could bring down the administrative state
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 Congressdecide to let courts or agencies make law.
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. Inin 1935, the justices deemed that a New Deal oil conservation law provided “no criterion to govern the President’s course.
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 hein 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.
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