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Symposium: More light than heat

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Symposium: More light than heat

Michael Stokes Paulsen is Distinguished University Chair and Professor at the University of St. Thomas School of Law.

Establishment clause cases involving religious symbols tend to generate more rhetorical heat than intellectual light. Passions and prejudices run high; clarity and principle tend to run low. The Supreme Court’s decisions have turned, embarrassingly, on the proximity of plastic elves and jumbo candy canes to traditional Christmas nativity scene displays. (Lynch v. Donnelly from 1984 is the classic illustration.) Others have involved incomprehensibly fractured outcomes in which just two justices agreed with the ultimate result and everybody else thought this the one outcome that could not possibly be right. (1989’s County of Allegheny v. American Civil Liberties Union and the split doubleheader of Ten Commandments cases, McCreary County v. ACLU and Van Orden v. Perry, decided the same day in 2005, both fit this description.) The result has been a combination of incoherence and occasional bitter comedy.

Not so with the Supreme Court’s decision in The American Legion v. American Humanist Association. The court upheld the constitutionality of the Bladensburg Peace Cross, a prominent Latin cross erected as a World War I war memorial by private groups in 1925, and maintained on public land in Maryland. This decision generated more light than heat. It produced more reasonable, reasoned analysis – and less vitriol – than practically any of the other of the court’s recent religious-symbols cases. The careful majority opinion by Justice Samuel Alito made an almost astonishing amount of sense, wrestling thoughtfully with the issues and producing a coherent, unifying rationale for a five-vote majority opinion comprising a diverse ideological center of the court (Alito, plus Chief Justice John Roberts and Justices Stephen Breyer, Brett Kavanaugh and Elena Kagan).

What Alito wrote for the Supreme Court was limited and sensible and, to its great credit, did not in any way depend upon or imply a denial of the intrinsic religious significance of the Latin cross as the central symbol of Christianity. “The cross is undoubtedly a Christian symbol,” the court affirms, “but that should not blind us to everything else that the Bladensburg Cross has come to represent.” Alito’s reasoning was straightforward and practical: Attributing a single purpose or message to a monument, symbol or practice is difficult, especially when a memorial or practice was established long ago. Motives and purposes vary, change over time, dissipate, and are sometimes replaced in whole or in part by other purposes. The messages associated with a monument or symbol thus tend to “multiply” over time. The meanings of a symbol also may change, or proliferate, over the years. Finally, the act of removing or mutilating a religiously expressive symbol – here, the plaintiffs had requested that the Bladensburg Peace Cross be either destroyed or its arms removed – would, in context, not be a neutral act, but one likely to be viewed as anti-religious hostility: “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”

These considerations, Alito wrote, “show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones.” This is a sensible insight. The majority does not say that use of a religiously expressive symbol is constitutional only where it has already stood for a long time, or acquired a new meaning wholly apart from any religious significance. It says merely that the question is different – easier – when it involves the tearing down of a longstanding religious symbol rather than erecting or establishing a new one. This difference establishes some common ground of presumptive constitutionality.

Some of the concurring opinions argued, gently, over what the principles of the majority opinion might mean for other religious displays that lacked the same 90-year historical pedigree. (More on that presently.) But upholding the Bladensburg Cross under these criteria was easy. The cross had been a symbol closely linked to World War I memorials generally, and this display stood firmly in that tradition. As such monuments have “endured through the years,” they become “a familiar part of the physical and cultural landscape” whose dismantling would not be viewed as a neutral act, but evidence of “hostility to religion” even if the religious associations of such memorials “are no longer in the forefront.” Thus, “destroying or defacing the Cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”

There was more to be said, of course. (This was an establishment clause case, after all.) And nearly everybody had something more to say: A plurality of four would have gone one step further (or simply been more explicit) in rejecting prior doctrine; there were five separate concurring opinions of various types, producing an overall majority of seven; and there was a predictable dissent by Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor). Significantly, nothing in the plurality or any of the concurrences impaired the clarity and unity of the majority opinion on the points covered. Rather, the various separate opinions served to reinforce and amplify the majority’s reasoning.

Alito, for a four-justice plurality – the majority minus Kagan – essentially repudiated the infamous “Lemon test” of 1971’s Lemon v. Kurtzman in the religious-symbols context and perhaps entirely. The Lemon test was simply incompatible with the approach of the majority opinion. That conclusion, when combined with the positions of Justices Clarence Thomas and Neil Gorsuch discussed below, would appear to mean that, finally, at long last, “Lemon is Dead” (as some have been prophesying or proclaiming for years).

Breyer, Kavanaugh and Kagan each offered brief concurring opinions, elaborating further views and expressing only the most mild intramural disagreement: Breyer (joined by Kagan) explained why he understood the majority opinion to leave open the constitutionality of a “newer memorial, erected under different circumstances.” Kavanaugh explained why he viewed the majority opinion as a “safe harbor” only, not a decision limited in principle to its facts – a position actually consistent with Breyer’s. Kavanaugh also emphasized that the Lemon test “is not good law and does not apply to Establishment Clauses cases” more broadly. Kagan explained her reluctance to sign on to an outright repudiation of Lemon, but agreed that it “does not solve every Establishment Clause question.” She praised Alito’s opinion even as to the parts she did not join.

Thomas concurred in the judgment only, reiterating his long-held idiosyncratic (but defensible) view that the establishment clause does not apply to the states. Even if it did, Thomas wrote, public religious symbols do not themselves coerce religious observance or other action and thus would not violate the establishment clause in any event. Thomas made five votes for interring Lemon’s “long-discredited test.”

Gorsuch, in an insightful opinion concurring in the judgment (joined by Thomas), found that the plaintiffs lacked standing to sue to challenge the constitutionality of the Bladensburg Peace Cross by virtue of being “offended observers.” If one thinks about it, this is simply a different way of saying that displays of religious symbols do not inflict any cognizable legal injury against which the establishment clause provides protection on the merits. Gorsuch drew this connection explicitly: It was a mistaken view of the establishment clause that had led to mistaken views of standing to raise an establishment clause challenge. “Lemon was a misadventure” that “left us only a mess,” he wrote, noting his agreement with the plurality that Lemon was “now shelved.” Count six votes nailing the lid to Lemon’s coffin.

Gorsuch’s Article III “standing” objection is a good one. Taken seriously, as it should be, it would have the salutary effect of disposing of nearly all of these types of cases at the threshold. That would avoid the questions left open by the majority opinion. That opinion settles most, if not all, questions of traditional or longstanding government use of religious symbols, displays, city names and ceremonial invocations – and that is itself a major and welcome achievement. But as Gorsuch noted, “it’s hard not to wonder: How old must a monument, symbol, or practice be to qualify for this new presumption [of constitutionality]?” Indeed. What about comparable religious symbols that lack the same historical pedigree as the Bladensburg Peace Cross? Gorsuch had it right: “what matters when it comes to assessing a monument, symbol, or practice isn’t its age, but its compliance with ageless principles.”

And in broadest terms, the correct principle is that the establishment clause is about protecting religious freedom – the freedom not to exercise religion. (It is the mirror image of the free exercise clause in this respect, not a contradictory principle.) The establishment clause is not about protecting against offense. The Supreme Court would do well to borrow a page from its free-speech decisions in this regard. Government invocation or maintenance of religious symbols is at root a form of government speech, and speech alone is generally not regarded as coercive of conduct. People can ignore messages they find offensive. The supposed offense of a message is not a basis for censoring it. As with Paul Robert Cohen’s jacket in 1971’s Cohen v. California, offended observers can avert their eyes or walk on. So too with displays of religious symbols: They do not present serious problems of religious freedom because they do not compel anyone to engage in religious exercise or expression.

Instead, they present questions of mainly of decorum, civic discourse, mutual respect and toleration – not constitutional law. The majority opinion in The American Legion v. American Humanist Association captured that sense perfectly: “The Religion Clauses of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.”

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A “view” from the courtroom: “Quite prolific in our writing”

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A “view” from the courtroom: “Quite prolific in our writing”

Art Lien, SCOTUSblog’s talented sketch artist, commutes to the court from Baltimore, and a traffic jam on the Capital Beltway this morning sent him to Google Maps for an alternate route, which just happened to take him past the Bladensburg Peace Cross, the memorial at the center of the pending case of The American Legion v. American Humanist Association. Lien tweeted a quick photograph as he approached the traffic circle where the cross stands. (Lien reports that traffic was stopped when he snapped the photo, but his fellow drivers may still be thankful he didn’t take out his ever-present sketch pad.)

Perhaps it was fate, perhaps just a coincidence, but Lien and others in the courtroom will soon hear much more about the fate of the cross.

As is typical of the first extra day for opinions, the public gallery is full, but the bar section is nearly empty. Solicitor General Noel Francisco is here, after missing Monday’s session, along with five or six members of his staff. No more than 10 seats in the rest of the bar section are occupied, though one lawyer present today is Neal Katyal, the former acting U.S. solicitor general who argued the cross case in February on behalf of the Maryland-National Capital Park and Planning Commission, a petitioner along with The American Legion.

Perhaps it is fate, coincidence, or just a good spidey-sense on Katyal’s part that a decision in this case could come today. The cross case is not his only pending decision, and today will turn out to be a good one for Katyal.

The court takes the bench, and Justice Ruth Bader Ginsburg is wearing the black-jeweled jabot that she favors for reading dissents from the bench. We’ll have to wait a bit to learn why.

Justice Ginsburg dissents in The American Legion v. American Humanist Association (Art Lien)

Chief Justice John Roberts says, “In case number 17-6086, Gundy versus United States, the court’s opinion will be announced by …”

Gundy was argued Oct. 2, and is the longest outstanding opinion, leading to much speculation that Justice Sonia Sotomayor was writing the opinion because she is the only one of the justices who has not written a majority opinion from the October sitting.

But the chief justice does not appear to be forming a word that begins with “s.” No, the decision “will be announced by Justice Kagan,” he says.

Justice Kagan with opinion in Gundy v. U.S. (Art Lien)

Kagan begins on a conversational note. “The opinion I’m going to describe is written for a plurality of the court—four justices from an eight-person court,” she says. “Another justice came to the same result in the case but didn’t sign on to any of the reasoning in the opinion.”

The case involves whether a provision of the Sex Offender Registration and Notification Act violates the “nondelegation doctrine,” which bars Congress from delegating its legislative powers to the other branches.

Kagan explains the heart of the issue, which involves the attorney general’s adopting a rule in 2007 that applied SORNA’s registration requirements for convicted sex offenders to “a group of people I’m going to call pre-act offenders,” she says.

Kagan says the “four of us” in her plurality believe the relevant provision requires the attorney general to apply SORNA’s registration requirements as soon as possible.

“And once the statute is understood that way, the four of us think the constitutional question becomes quite easy,” she says. “Although Congress can’t delegate its power to make laws, it can give executive agencies substantial discretion to implement and enforce the laws.”

She announces that Justice Samuel Alito is the fifth vote in the judgment, but she doesn’t attempt to characterize his short opinion. Justice Neil Gorsuch has filed a dissenting opinion, joined by the chief justice and Justice Clarence Thomas, she notes.

That adds up to eight, and she did note the case was heard by an eight-member court. But she does not mention from the bench that Justice Brett Kavanaugh, who had not yet been confirmed when the court heard arguments, took no part in the consideration or decision of the case.

Sotomayor is up next with the decision in McDonough v. Smith, a case about the statute of limitations for a fabricated-evidence claim brought by a county election commissioner in New York state. The facts of the case are messy, and the opinion is technical, but the court rules that a limitations period for the commissioner’s civil lawsuit against his accuser did not begin to run until the commissioner’s acquittal on criminal charges, and thus his civil case is revived.

Katyal argued the case on behalf of the petitioner, Edward McDonough, so he has notched a victory this morning.

The chief justice announces that Alito has the opinion in the Bladensburg cross case.

Justice Alito with opinion in The American Legion v. American Humanist Association (Art Lien)

As we noted the other day, Alito tends to give very short summaries from the bench except in more momentous cases. This summary will not be short.

Alito describes how during World War I, the military marked the graves of fallen American soldiers in Europe with temporary wooden crosses or Stars of David, which was a departure from marking them with the uniform “rectangular slabs” seen in national cemeteries here at home.

The images of row after row of the crosses was moving to the public, he says, and when the War Department announced after the 1918 armistice that the wooden crosses and Stars of David would be replaced with the traditional slabs, there was an outcry.

He describes the history of the Bladensburg cross, which was meant to honor the World War I dead of Prince George’s County, Maryland. After a fundraising campaign and the intervention of a local American Legion post, the monument was finished in 1925, listing the names of 49 local men, both black and white, who died in the war.

He quickly summarizes how the state agency, the Maryland-National Capital Park and Planning Commission, acquired the cross and the land on which it sits, to help preserve it and to address traffic safety concerns around its busy site.

Alito, in summarizing the procedural history of the establishment clause challenge brought by the American Humanist Association, seems to relish highlighting a possible remedy discussed by the U.S. Court of Appeals for the 4th Circuit, which ruled against the cross and mentioned the suggestion of the challengers that the arms could be removed to form a non-religious slab or obelisk. As Alito puts it, the remedies included removal or demolition of the memorial, “or at least that the arms be amputated.”

He explains what is not a surprise by this point, that the 4th Circuit ruling against the court is now reversed, based largely on the role of the cross in World War I and the longstanding nature of the monument. Katyal has his second win of the day.

“The fallen soldiers’ final resting places abroad were marked by white crosses or Stars of David,” Alito says. “The solemn image of endless rows of white crosses became inextricably linked with and symbolic of the ultimate price paid by 116,000 soldiers. And this relationship between the cross and the war undoubtedly influenced the design of the many war memorials that sprang up across the nation.”

He concludes on an eloquent note.

“For some, [the] monument is a symbolic resting place for ancestors who never returned home,” Alito says. “For others, it is a place for the community to gather and honor all veterans and their sacrifices for our nation. For others still, it is a historical landmark. For many of these people, destroying or defacing the cross that has stood undisturbed for nearly a century would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”

Before he announces the lineup, he notes that “my colleagues and I have been quite prolific in our writing.” There are concurring opinions from Justices Stephen Breyer, Kavanaugh, and Kagan, and opinions concurring in the judgment by Thomas and Gorsuch (with various cross-signings). Ginsburg has filed a dissent, joined by Sotomayor.

The lineup reminds me of a time when Justice Sandra Day O’Connor announced a similarly complex listing and quipped that there appeared to be “more opinions that there are justices.”

Alito turns to his right, and Ginsburg speaks up.

“This case, as you have just heard, concerns an immense Latin cross standing alone on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland,” she says.

Ginsburg’s voice, weakened by a cold and laryngitis on Monday, is considerably stronger this morning, if not quite 100 percent. Perhaps she got a boost from winning the MTV Movie & TV Award as “best real-life hero” in a show that aired on Monday night.

“The Latin cross is the foremost symbol of the Christian faith,” she says. “The Latin cross is not emblematic of any other faith. By maintaining the Peace Cross on a public highway, the state places Christianity above other faiths and conveys a message of exclusion to non-Christians, nearly thirty percent of the U.S. population, telling them they are outsiders, not full members of the political community.”

She goes on for several more minutes before concluding with, “Justice Sotomayor joins me in this dissent.”

This might seem like a good bit of drama on which to end the day’s opinions. But there is one more decision, and it is decidedly less profound. Breyer has the opinion in PDR Network LLC v. Carlton & Harris Chiropractic Inc., about whether the Hobbs Act requires a federal district court in this case to accept the Federal Communication Commission’s interpretation of the Telephone Consumer Protection Act, which prohibits any “telephone facsimile machine” from sending an unsolicited advertisement to another fax machine.

“The case is more difficult than my summary makes it sound,” says Breyer, whose brief summary so far hasn’t made it sound particularly easy.

He quickly adds that “we’re sending it back.” While there is not a great deal the court agrees on in multiple opinions, it is remanding the case to the 4th Circuit to consider two preliminary questions arising from an order of the Federal Communications Commission.

He pauses and almost forgets to announce the lineup. “Oh, wait,” he says, noting that while there is a majority for the limited resolution, Thomas has filed an opinion concurring in the judgment, joined by Gorsuch, while Kavanaugh has filed an opinion concurring in the judgment, joined by Thomas, Alito and Gorsuch.

As the justices rise to leave the bench, Marshal Pamela Talkin announces that we will do this all again on Friday.

The question is, what fateful or coincidental route might Google Maps recommend for Art Lien tomorrow? Through Maryland’s sixth congressional district, at the heart of political gerrymandering case Benisek v. Lamone? Past the Suitland, Md., headquarters of the U.S. Census Bureau, central to the citizenship-question case of Department of Commerce v. New York? Or maybe just his normal route.

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Symposium: The cross may stand, though it offends

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Symposium: The cross may stand, though it offends

Harvey Weiner is National Judge Advocate of the Jewish War Veterans of the United States Inc., which submitted an amicus brief in support of the challengers in The American Legion v. American Humanist Association.

In its opinion today, the U.S. Supreme Court has abandoned almost 40 years of precedent, albeit very difficult precedent, and made it almost impossible to challenge religious monuments that truly amount to the establishment of a religion under the First Amendment of the U.S. Constitution. The entire opinion, including the dissent, begins by giving almost a secular name to what is so clearly a religious object. The Bladensburg War Memorial is not a “Peace Cross,” whatever that is. It is a war memorial cross with the names of 49 soldiers who died in World War I engraved on it. That cross means that those 49 individuals, who died in war, will, through their belief in Jesus Christ, arise from the dead and have eternal life. That message contained in a 40-foot cross on governmental land and maintained by governmental funds is the prime message sent. It does not mean “peace.”

The Jewish War Veterans of the United States of America Inc. is the oldest active national veterans’ organization in the United States. Jewish-Americans have fought and died in every war since the Revolutionary War and have done so in a proportion greater than their proportion in the general population, at least through the Vietnam War. Approximately 250,000 Jewish-Americans answered the call to action in World War I. In that group, more than 3,500 Jewish-American soldiers died for their country, 12,000 Jewish-American soldiers were wounded, and 1,100 received decorations for bravery. Jewish-Americans made up nearly six percent of America’s armed forces in World War I, despite comprising just over three percent of the country’s population at the time. If the JWV has no standing to bring suit, then who does?

Justice Ruth Bader Ginsburg’s dissent is simple, clear and correct. The government must be neutral, but when a cross is displayed on public property, the government is presumed to endorse its religious content. In the context of war memorial crosses, the dividing line seems simple. Each grave can and must be allowed to have its preferred religious symbol. However, there cannot be a religious symbol, particularly a huge one, that conveys the greater war memorial message, which is “Christianity is the favored religion” and “only Christians died.” Context is important and the various religious symbols as part of a larger display, such as in Arlington National Cemetery, do not convey the religious message of exclusivity. The Bladensburg Cross does convey the message of exclusivity, i.e., Christianity is the established religion.

Some of the conclusions reached by the Supreme Court can be analyzed by analogy. In Justice Brett Kavanaugh’s concluding paragraph in his concurring opinion, he suggests that there are other recourses. The Maryland legislature could enact new laws to require removal of the cross or transfer of the land. The Maryland governor or other state officials have the authority to do so under current Maryland law. The Maryland Court of Appeals may speak to the questions. The people of Maryland can amend the state constitution. There is little chance of any of that happening, which would be seen as anti-Christian, just as there was little chance of southern states ending racial segregation on their own without the decisions of the U.S. Supreme Court.

The majority opinion states it may be difficult to identify the original purpose of a monument, that the monument’s purpose may multiply, that the purpose for maintaining a monument may evolve over time and that destroying may seem to be hostile to religion. It speaks of the Notre Dame cathedral, which, besides being a church, is also a national symbol. Alas, that a war memorial Latin cross would become an American national symbol. Alas, to Christians, that a war memorial Latin cross has significant meanings other than being the ultimate symbol of Christianity.

This massive cross has stood on governmental property for 94 years, allegedly generating no controversy until this lawsuit was filed. At the time when it was built, there was rampant anti-Semitism, which was the reason why the JWV was created after the Civil War. It would be unrealistic indeed to expect opposition to building the cross at the time, which would probably have been dangerous for Jews.

The majority opinion concludes that the cross at issue represents interpretations other than being a Christian symbol. It is a symbolic resting place for ancestors who never returned home. It is a place for the community to gather to honor all veterans. It is a historical landmark. In a similar way, the antebellum South, with its slavery, represented a wonderful way of life for plantation owners and their families. This case should not become a historical landmark, but rather a historic relic.

In Bladensburg

In Bladensburg, a cross did stand
Between three streets on public land
That honor those killed in World War One,
Who, through Christ, will live anon
Though not so those who don’t believe.
We are the Court. So do not grieve.
We worked and seven opinions did we weave
The cross may stand, though it offends,

In Bladensburg

 

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Opinion analysis: Court refuses to resurrect nondelegation doctrine

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Opinion analysis: Court refuses to resurrect nondelegation doctrine

The Supreme Court today refused to resurrect the nondelegation doctrine, the long-dormant principle that Congress cannot transfer its power to legislate to another branch of government. The case, Gundy v. United States, involved a provision of the Sex Offender Registration and Notification Act that confers on the attorney general the authority to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment. For Herman Gundy, the petitioner, the decision has a straightforward and immediate meaning: his sentence will stand. For the nondelegation doctrine, the significance of Gundy lies not in what the Supreme Court did today, but in what the dissent and the concurrence portend for tomorrow.

Justice Kagan with opinion in Gundy v. U.S. (Art Lien)

The Gundy vote was badly fractured and only eight justices participated in deciding the case, because Justice Brett Kavanaugh had not yet been confirmed to the court when the case was argued last October. Justice Elena Kagan’s plurality opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justice Neil Gorsuch’s dissent was joined by Chief Justice John Roberts and Justice Clarence Thomas. Justice Samuel Alito concurred in the judgment only, which both deprived Kagan of a majority and prevented a 4-4 per curiam affirmance.

Gundy had contended that SORNA conferred “unguided,” “unchecked” and “plenary” power upon the attorney general to create, remove or revise registration requirements for pre-act offenders. If read that way, said Kagan, the provision would indeed pose a “nondelegation question.” But Kagan did not read the statute that way. Taking the approach hinted at by her questions at oral argument, Kagan instead construed SORNA “to require the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible.” She pieced together support for this construction from SORNA’s declaration of purpose (to establish “a comprehensive national system” for sex-offender registration); its definitional provision (defining “sex offender” as an “individual who was convicted of a sex offense”); and its legislative history. Returning to the text of the key phrase, Kagan wrote that “‘[s]pecify the applicability’ … does not mean ‘specify whether to apply SORNA’ to pre-Act offenders at all, even though everything else in the Act commands their coverage. The phrase instead means ‘specify how to apply SORNA’ to pre-Act offenders if transitional difficulties require some delay.”

Is there a nondelegation problem with a statute that instructs the attorney general to apply registration requirements to pre-act offenders as soon as feasible? “That question is easy,” wrote Kagan: “[N]o.” Citing a string of very broad delegations that the Supreme Court has upheld since 1935, Kagan sized SORNA’s delegation as “distinctly small-bore” in comparison. Moreover, she added, “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” Congress is “dependent” on the “need to give discretion” to executive officials charged with implementing its programs. The court’s long-standing course of refusing to second-guess these “necessities of government” is, Kagan concluded, one of both “wisdom” and “humility.”

At 33 pages, Gorsuch’s dissent is nearly twice as long as Kagan’s 18-page plurality. On the question of how to interpret SORNA, Gorsuch took the polar opposite view of the statute from the plurality: SORNA “endow[s] the nation’s chief prosecutor with the power to write his own criminal code.” As Gorsuch read it, the breadth of SORNA’s delegation is “vast” and gives the attorney general “free rein.” The statute says “nothing about feasibility,” argued Gorsuch, and nothing in the particular provision at issue, the statute’s statement of purpose, its definitional terms or its legislative history can be regarded as cabining the breadth of the power that SORNA delegates to the executive or as supplying a standard by which to exercise that power.

That statutory analysis of SORNA bookends the dissent. Its long middle portion contains Gorsuch’s analysis of the history of the nondelegation doctrine and why it should be revived. Gorsuch argued that nondelegation doctrine honors the Constitution’s original text and design, and that it promotes stability, fair notice, the protection of minority rights, political accountability, and broad social consensus in lawmaking.  Noting that the court has “an obligation to decide whether Congress has unconstitutionally divested itself of its legislative responsibilities,” he next asked: “[W]hat’s the test?” Gorsuch set out three types of delegations that are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to “fill up the details”; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power, such as foreign affairs.

Gorsuch then pointed to “the evolving ‘intelligible principle’ doctrine” as the explanation for the Supreme Court’s “quiescence” since the 1930s on the delegation front. Gorsuch did not disapprove of the decision in J.W. Hampton, Jr., & Co. v. United States, in which the court announced the intelligible principle doctrine, instead rationalizing it as consistent with older tests; “the [J.W. Hampton] Court’s reference to an ‘intelligible principle’ was just another way to describe the traditional rule that Congress may leave up to the executive the responsibility to find facts and fill up details.” Instead, Gorsuch wrote, it was in the late 1940s that the “mutated version” of the intelligible principle test appeared. In subsequent years, he explained, the court has sometimes reached the right result while applying this test, for example in cases such as Loving v. United States, which involved the president’s independent Article II power. In other areas, he said, other doctrines have picked up the slack: “We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.” Gorsuch cited the major-questions exception and vagueness cases as examples of these “hydraulic pressures” at work.

Gorsuch closed by explaining that SORNA is unconstitutional under this stricter version of the nondelegation doctrine. He argued that SORNA does not involve filling up the details or “deciding the factual predicates to a rule set forth by statute”; nor does it involve an area of “overlapping” inherent Article II authority, such as the field of foreign affairs. Allowing SORNA’s delegation to stand, Gorsuch said, would “invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”

Finally, Alito concurred only in the judgment, saying: “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.” Alito thus indicated that he would be receptive to future nondelegation challenges, but that he was not willing to rule in Gundy’s favor here: “[I]t would be freakish to single out the provision at issue here for special treatment.”

The lineup in Gundy shows that there are four justices on the court willing to reconsider the nondelegation doctrine from the ground up. It also shows that there are four justices who are still willing to use the tools of statutory interpretation to fend off the nondelegation problem—a technique the court has employed on many occasions in the past. In the next nondelegation challenge, it may fall to Kavanaugh to break that tie.

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Government urges court to decide census case now

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Government urges court to decide census case now

Last week the challengers in the dispute over the decision to add a question about citizenship to the 2020 census asked the justices to put off their ruling because of new evidence in the case. Today the federal government responded, describing the challengers’ claim as “meritless” and urging the justices to deny the request.

The justices heard oral argument in the case in April, after a federal district judge in New York blocked the government from using the question on the ground that the government’s conduct violated the federal laws governing administrative agencies.

After the oral argument, the challengers notified the Supreme Court about new evidence suggesting that Thomas Hofeller, a Republican redistricting strategist, was involved in the decision to add the citizenship question to the census, to provide whites and Republicans with an advantage in future elections. The challengers returned to the Supreme Court approximately two weeks later, telling the justices that the district court had concluded that the new allegations were “serious,” but that its hands were tied while the case was pending before the Supreme Court.

The challengers asked the justices to either uphold the district court’s ruling barring the government from using the citizenship question or send the case back to the district court for more factfinding –specifically, about whether officials in the Department of Commerce, including Secretary of Commerce Wilbur Ross, shared Hofeller’s motives for adding the question.

In today’s filing, the government dismissed the challengers’ contention that Hofeller was the real author of a letter from the Department of Justice to the Department of Commerce asking for the citizenship data as a “conspiracy theory” that was “implausible on its face.” But in any event, the government continued, the challengers are “not entitled to a do-over now,” especially when they either “already knew or, with minimal diligence, easily could have discovered” the substance of the evidence “months ago.”

And after a district court in Maryland on Wednesday ruled that another look at whether the government intended to discriminate against immigrants by adding the citizenship question is warranted, the government urged the Supreme Court to make clear in its opinion that there was no intent to discriminate.

Finally, the government pushed back against the challengers’ suggestion, made in their filing last week, that the government could delay finalizing the questionnaire until the end of October. Doing so, the government stressed, would require “exceptional resources”; the district court “correctly found,” the government explained, “that for all practical purposes,” the questionnaire needs to be finalized by the end of this month.

This post was originally published at Howe on the Court.

The post Government urges court to decide census case now appeared first on SCOTUSblog.

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