Is The Supreme Court About To Give Haters Of The 'Deep State' What They Want?

Enlarge this image toggle caption Eric Baradat/AFP/Getty Images Eric Baradat/AFP/Getty Images

Lost in the shuffle Thursday at the Supreme Court — with the major decision released in a separation of church and state case dominating — was another ruling that could, at some point, have wide ramifications for how American government functions.

The court ruled that Congress did not overstep its authority in handing off important power to the attorney general under the federal Sex Offender Registration Act, or SORNA.

The court's decision came on a 5-3 vote, but only four justices agreed on the reasoning.

There was a landmine in the decision, however. With the fifth vote, Justice Samuel Alito said that if a majority of the court were willing to reexamine its long-held position, he might be willing to do the same.

For now, he was not willing to go that far, but that could change.

At issue in the case is the practice that allows federal agencies to write rules and make decisions about enforcing legislation enacted by Congress. This affects any law Congress passes, from the sex-offender statute in this case to, for example, the Affordable Care Act and on.

Those who warn about the power of the so-called administrative state, or the "deep state," often contend that Congress frequently violates the Constitution by delegating legislative power to other government agencies.

That theory is called the "non-delegation doctrine," but, in fact, the Supreme Court has only twice in its history struck down a federal law on such grounds, and those two cases were in 1935 when a conservative Supreme Court used the theory to invalidate two significant administration reforms aimed at pulling the country out of the Great Depression.

In the 84 years since then, the court has repeatedly refused to make a similar decision. Even conservative icons like the late Justice Antonin Scalia refused invitations to revisit it.

But in Thursday's case, Justice Neil Gorsuch, joined by Justice Clarence Thomas and Chief Justice John Roberts said the time had come to draw a line in the sand. The court's newest appointee, Brett Kavanaugh, did not vote in the case, as he arrived at the court a week after this case was argued.

That left Alito, with the whip hand — either to cast his lot with the three or with the court's liberals. He sided with the liberals, but said if a majority of the court were willing to revisit the issue in a different context, he might be willing also.

"If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years," Alito said, "I would support that effort."

This case was about more than one sex offender

At issue in this case was whether the Sex Offender Registration Act required those convicted before SORNA was passed to register as sex offenders.

When SORNA was enacted in 2006, Congress did not say explicitly whether its provisions applied to people convicted before passage of the law.

In 2008, then-Attorney General Michael Mukasey, in setting out rules for implementing the statute, elected to apply the law to some pre-act offenders.

Herman Gundy was sentenced to 10 years in prison on a child rape charge in Maryland in 2005, a year before SORNA was enacted. He served seven years of a 10-year sentence before being released to a halfway house in New York.

He was charged with failing to register as a sex offender there, but Gundy's lawyers claimed that the registration requirement should not apply to their client, because it was enacted after his offense. They maintained that Congress could not delegate this much power to the attorney general.

The Supreme Court majority rejected that argument on Thursday. Writing for a four-justice plurality, Justice Elena Kagan said Congress, in enacting SORNA and other legislation, had made clear that the law was to apply to all sex offenders, whether they were convicted before SORNA's passage or afterward.

"Indeed, if SORNA's delegation [of power] 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," Kagan wrote.

Quoting Justice Scalia, she added, "Congress simply cannot do its job absent an ability to delegate power under broad general directives."

Justice Gorsuch's dissenting opinion, 32-pages long, was almost twice as long as Kagan's plurality.

"The Constitution does not permit judges to look the other way, " he wrote. "We must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of fortitude to do our duty as faithful guardians of the Constitution."

Could that be a sign of things to come in a case in the not-too-distant future? It could depend on how Justice Kavanaugh would decide.