Pro­gres­sives wor­ried about sep­a­ra­tion of pow­ers have rea­son to be en­cour­aged

Chicago Sun-Times - - OPINION - BY JA­COB SULLUM

Bthe at­tor­ney gen­eral broad au­thor­ity to de­cide which of those half a mil­lion or so sex of­fend­ers (if any) must com­ply and “to pre­scribe rules for reg­is­tra­tion of any such sex of­fender.”

As a judge on the U.S. Court of Ap­peals for the 10th Cir­cuit, Gor­such crit­i­cized that pro­vi­sion for giv­ing the at­tor­ney gen­eral too much dis­cre­tion. “If the sep­a­ra­tion of pow­ers means any­thing,” he wrote in a 2015 SORNA case, “it must mean that the pros­e­cu­tor isn’t al­lowed to de­fine the crimes he gets to en­force.”

It was there­fore un­sur­pris­ing that last week Gor­such seemed to side with a sex of­fender who was chal­leng­ing retroac­tive ap­pli­ca­tion of SORNA. “I’m hav­ing trou­ble think­ing of an­other del­e­ga­tion in which this court has ever al­lowed the chief pros­e­cu­tor of the United States to write the crim­i­nal law for those he’s go­ing to pros­e­cute,” Gor­such said. “We say that vague crim­i­nal laws must be stricken. … What’s vaguer than a blank check to the at­tor­ney gen­eral of the United States to de­ter­mine who he’s go­ing to pros­e­cute?”

Writ­ing in Slate, Mark Joseph Stern said this case “cre­ates a dilemma for the left be­cause SORNA is a truly ter­ri­ble law, and its retroac­tiv­ity pro­vi­sion de­serves to be in­val­i­dated.” In Stern’s view, “any crim­i­nal jus­tice re­former” should op­pose retroac­tive ap­pli­ca­tion of SORNA, which “drives Amer­ica’s mass in­car­cer­a­tion prob­lem by send­ing re­ha­bil­i­tated of­fend­ers back to prison be­cause they failed to fill out cer­tain pa­per­work.”

The dilemma, as Stern sees it, is that “count­less fed­eral laws,” in­clud­ing those au­tho­riz­ing en­vi­ron­men­tal and fi­nan­cial reg­u­la­tions, “use broad lan­guage to let agen­cies en­act poli­cies to carry out Congress’ ob­jec­tives.” He wor­ries that such laws could be at risk if the court starts to get se­ri­ous about en­forc­ing the “non-del­e­ga­tion doc­trine,” which says Congress can­not cede its leg­isla­tive pow­ers to the ex­ec­u­tive branch.

For sim­i­lar rea­sons, fans of fed­eral reg­u­la­tion are trou­bled by crit­i­cism of the court’s def­er­ence to ad­min­is­tra­tive agen­cies when in­ter­pret­ing “am­bigu­ous” statutes. Gor­such has ques­tioned that ten­dency, which Ka­vanaugh has de­scribed as “an atex­tual in­ven­tion” and “noth­ing more than a ju­di­cially or­ches­trated shift of power from Congress to the ex­ec­u­tive branch.”

Stern’s dilemma is based on a fear of too much con­sis­tency. But if it’s dan­ger­ous to let the at­tor­ney gen­eral write the laws he en­forces, isn’t the same thing true of reg­u­la­tors, es­pe­cially when break­ing their rules car­ries crim­i­nal penal­ties? Both sit­u­a­tions raise the same con­cerns about fair no­tice, ac­count­abil­ity and abuse of power.

You might think pro­gres­sives would ap­pre­ci­ate the prin­ci­ple at stake here when the man in charge of the ex­ec­u­tive branch is some­one they fear and loathe. If you don’t trust Don­ald Trump’s gov­ern­ing in­stincts, shouldn’t you want the courts to limit the dam­age he can do, lim­it­ing the dis­cre­tion of the agen­cies he con­trols?

The sep­a­ra­tion of pow­ers is not an end in it­self. The aim, as John Adams ex­plained when he drafted the Mass­a­chu­setts Con­sti­tu­tion, is “a gov­ern­ment of laws and not of men.” The idea is es­pe­cially rel­e­vant in these con­tentious times.


Neil Gor­such

Brett Ka­vanaugh

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