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Neil Gorsuch Catches a Hail Mary for the Constitution

June 28, 2019 in Economics

By Trevor Burrus

Trevor Burrus

Last week, the Supreme Court took a major step toward rolling
back one of the most unconstitutional features of our federal
government: the over-delegation of lawmaking power to the executive
branch and administrative agencies. In Gundy v. United
, the Court took a relatively obscure case filed by a
public defender—one with no support from amicus briefs or
popular commentary—and revisited the nondelegation doctrine,
a crucial but largely forgotten part of our Constitution. And while
we can’t know for sure, this turn of events was likely due to
the actions of Justice Neil Gorsuch.

In his second term, Gorsuch is again showing how a principled
commitment to the Constitution can help reshape the Court into a
more nonpartisan and just institution.

Herman Gundy ultimately lost his case. Justice Elena
Kagan’s majority opinion maintains the status quo of allowing
Congress to abdicate its responsibility to pass laws. Justice
Samuel Alito gave Kagan a fifth vote, though he also unequivocally
voiced his support for revisiting the nondelegation doctrine:
“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.” That’s a big deal, and it’s an
invitation to litigators to bring forward another nondelegation

His opinion in a
little-noticed case could eventually roll back decades of executive

How Gundy’s case got to the Court, however, is an
interesting story.

Gundy was convicted under Maryland law for sexually assaulting a
minor. His conviction happened before Congress approved the Sex
Offender Registration and Notification Act (SORNA) in 2006. But
SORNA requires registration even for sex offenders who were
convicted before it was passed, and lets the attorney general
define which past offenders have to register, certainly a broad
delegation of legislative power to the executive branch. But that
happens all the time, and as Alito pointed out, it’s been 84
years since the Supreme Court held that Congress had over-delegated
its constitutional responsibilities.

When Gundy didn’t update his status upon moving to New
York, he was prosecuted for violating the act. He filed his appeal
to the Supreme Court in forma pauperis, which is a request
by an indigent defendant to waive the usual filing fees. The
Supreme Court gets between 7,000 and 8,000 petitions per year, and
about two thirds are filed in forma pauperis, often from
prisoners and often pro se(representing yourself).
Gundy’s chances weren’t good.

Here’s where things get interesting: Gundy’s
petition to the Supreme Court was a Hail Mary pass intended for
Gorsuch, and Gorsuch caught it.

Gundy’s petition raised a few reasons why the Court should
take his case. It is standard practice to ask the Court to …read more

Source: OP-EDS

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