The justices of the U.S. Supreme Court gather for a formal group portrait to include the new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite)

The Supreme Court has a lot of major cases pending decisions but there were two little followed cases decided this week that shook a lot of legal observers to the core and threatened to upend the federal government as it currently operates.

First up was a Fifth Amendment “takings clause” case that has knocked rapacious local governments back on their heels in the same way the infamous Kelo decision had conservatives wondering exactly what reference the Supreme Court was using.

Briefly, Rose Mary Knick owns a 90-acre parcel in Scott Township, PA. She uses the acreage for grazing horses but on that land is a small cemetery that contains graves of ancestors of neighbors. I don’t know what brought the issue to a head–I suspect some local interpersonal melodrama–but the township passed an ordinance requiring that all cemeteries on private land to be open and accessible to the public during daylight hours and issued a notice of violation to Knick. Knick filed a state lawsuit claiming her property was being illegally taken. The township responded by withdrawing its notice of violation and announcing that the ordinance would not be enforced. Knick was unimpressed and pressed her suit in federal court. The district court dismissed her lawsuit using a precedent set by the Supreme Court in 1985 in Williamson Planning Commission v. Hamilton Bank of Johnson City. This requires aggrieved landowners to first seek redress in state courts and then, in a Catch-22 situation, requires federal courts to treat state court decisions in these matters as final (from the decision):

The unanticipated consequence of this ruling was that a takings plaintiff who complied with Williamson County and brought a compensation claim in state court would — on proceeding to federal court after the unsuccessful state claim — have the federal claim barred because the full faith and credit statute required the federal court to give preclusive effect to the state court’s decision.

The result was a 5-4 decision, the split cleanly between conservatives an progressives, that overturned precedent. Chief Justice Roberts found that citizens who have had their property confiscated or the use restricted by state action have the same access to federal courts as any other citizen whose rights have been violated and there is no need for them to fight several years in state court to get redress.

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated:So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.

The liberals, led by Justice Kagan, cried Armageddon:

Justice Elena Kagan, joined by the court’s three other liberal justices, dissented in furious tones. Friday’s decision, she said, “rejects far more than a single decision in 1985.” That decision, Williamson Country Regional Planning Commission v. Hamilton Bank of Johnson City, “was rooted in an understanding of the Fifth Amendment’s Takings Clause stretching back to the late 1800s, Kagan wrote. On that view, a government could take property so long as it provided a reliable mechanism to pay just compensation, even if the payment came after the fact,” Kagan said, adding, “No longer.” In conflict with “precedent after precedent,” she said, the majority holds that a government violates the Constitution whenever it takes property without advance compensation, no matter how good its commitment to pay. The consequence, she added, is “to channel a mass of quintessentially local cases involving complex state-law issues into federal courts.” The “entire idea” of abiding by precedent, she said, is that “judges do not get to reverse a decision just because they never liked it in the first instance.” Rather, she said, they need a reason other than that the precedent was wrongly decided. “It is hard to overstate the value, in a country like ours, of stability in law,” said Kagan, pointing so a similar observation by one of her colleagues just weeks ago. On May 13, Justice Stephen Breyer chastised his conservative colleagues for reversing a precedent on a question that rarely arises: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” “Well that didn’t take long,” opined a caustic Kagan. “Now one may wonder yet again.”

What Kagan was probably referring to was the close call with instant death the administrative state nearly suffered on Thursday.

Since the court-packing crisis led a more compliant and stump-broke Supreme Court to allow Congress to delegate authority to federal agencies, we’ve been on a fast and downhill slide towards an administrative superstate controlling our lives down to the smallest detail (take a look at this for details). It is this delegation idiocy that has led to homeowners being fined and prosecuted for filling “wetlands” that the EPA or Army Corps of Engineers have determined are used by migrating waterfowl or are somehow linked to navigable bodies of water. It is this silliness that has allowed the National Highway Traffic Safety Administration to impose speed limits and control the legal age for drinking alcohol [ed. note: this was done by Congress, my error. See comments for more]. It has allowed the EPA, not the market, to set fuel efficiency standards.

In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA) that required certain sex offenders to register in their state of residence and notify neighbors of their presence. Nestled in this law is a provision that gives the Attorney General the power to decide how this law applies to persons convicted of covered offenses before the passage of the law. (Here I’ll offer my opinion that the Constitution tells us that ex post facto laws are not permitted but that’s just me). Savor that for a minute. Congress tells the guy with the least inclination to act impartially to figure out how to lower the boom on people because Congress doesn’t want to touch the issue.

Anyway, a guy named Herman Gundy, who had been convicted in 2005 of a covered offense, didn’t register and was prosecuted. He appealed on the grounds that his conviction was based on an unconstitutional delegation of authority.

The case was 5-3. Justice Kavanaugh was being slandered by a clutch of psychos and their media fluffers at the time and didn’t hear the arguments. Kagan, writing for the majority said, in essence, “we don’t see the problem with Congress letting the Attorney General make up laws out of whole cloth and send people to prison for breaking them” concluded:

Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.

Justice Gorsch, in a dissent joined by Chief Justice Roberts and Justice Thomas essentially said that, yes, that was exactly correct:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next? Today, a plurality of an eight-member Court endorses this extraconstitutional arrangement but resolves nothing. Working from an understanding of the Constitution at war with its text and history, the plurality reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the Attorney General.

The most intriguing part of this was the fifth majority vote, that of Justice Alito. Though Alito voted with the majority he did not sign onto any part of the majority’s reasoning and his concurrence sounded very, very ominous should such a case ever reach a 9-member Supreme Court:

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid. 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. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

This has thrown the left into a full-fledged panic. (See ‘Most of Government Is Unconstitutional’ Did the Supreme Court just suggest that it is prepared to agree with that statement? for the motherlode.)

In response, Justice Neil Gorsuch wrote a lengthy dissent extolling the need to curb Congress’s powers to delegate to federal agencies. Surprisingly, two other justices, Chief Justice John Roberts and Justice Clarence Thomas, joined this radical opinion. And while a fourth — Justice Alito — sided with the more liberal justices, he wrote separately to say that “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.” Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power. So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else. Nothing in the Constitution requires that result. The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power. That argument, however, may not carry the day. And make no mistake: If the law in Gundy is unconstitutional, then as Justice Kagan wrote, “most of government is unconstitutional.” Alarmingly, a majority of justices on the Supreme Court may not have a problem with that.

I think this guy is completely right that the idea of Congress delegating its authority to form criminal statutes to the the Executive is clearly on the table. Alito’s concurrence with the majority while agreeing with the dissent was a tactic to ensure that somewhere out there a clever lawyer will find a case that will perk up to the Supreme Court and it will be substantial enough that a majority will drive a stake into the heart of the administrative beast that is slowly strangling freedom and, in doing so, force Congress to actually do its job.

What is immensely encouraging about these two decisions are that they reveal a new and conservative majority that seems united in restraining government, that is jealous of constitutional liberties, and is not deterred by prospect of casting aside precedent that offends these principles. If that is the case, then there is renewed hope for the American project and the people who thought “but Gorsuch” was such a killer insult are going to look mighty stupid.

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