By curtailing the president regarding tariffs, the Supreme Court on Friday perhaps applied a defibrillator to Congress. Its weak contemporary heartbeat threatens the constitutional architecture of powers separated, checked and balanced. But Congress’s fluttering pulse requires a stronger jolt than last week’s 6-3 decision. It addressed only part of the problem that Congress has created by behavior that fuels today’s rampant presidency.
Under Chief Justice John G. Roberts Jr., the court’s major contribution to constitutional law has been developing the major questions doctrine. The court’s tariff decision turned on the MQD, but demonstrated its insufficiency.
The MQD, which the court created, summons Congress to seriousness about its primacy in our constitutional system, and about the craft of legislating. It says that if Congress intends to surrender to the executive some powers with substantial political or economic consequences, Congress must clearly say so.
But the MQD entails, as a primary consideration, something the court has been dilatory about elaborating and timid about enforcing: a nondelegation doctrine. That is, criteria for deciding when Congress may properly divest itself, however eagerly it wants to, of powers the Constitution vests in it.
Writing last week for the majority, Roberts held that the president improperly relied upon a statute he thinks granted him unlimited power to impose tariffs of any severity and duration on any nation, for any reason. The statute, Roberts wrote, does not grant such power with the clarity and precision that the MQD requires.
The MQD expresses, Roberts wrote, the court’s reluctance to read into “ambiguous” statutory texts “extraordinary delegations of Congress’s powers.” But the absence of ambiguity should not validate Congress’s delegating to the executive powers constitutionally vested in Congress.
Justice Neil M. Gorsuch, concurring with Roberts’s opinion, delivered a lucid and combative explanation of the MQD’s history. But he comes to a limp conclusion: The crucial question about an executive branch claim to “an extraordinary power” is whether there is “clear statutory authority” for the claim.
In a four-page concurrence responding to Gorsuch’s 46 pages, Justice Amy Coney Barrett, who has a knack for packing maximum constitutional wallop into minimum verbiage, said: “If the Constitution permits Congress to give the Executive a particular power, who are we to get in the way? Does the Judiciary really protect the Constitution by impeding the constitutional action of another branch?”
The answer to her second question is an emphatic “yes.” If the Constitution permits? The threshold question is: Does the Constitution permit this? This question cannot be answered without a strong nondelegation doctrine.
This doctrine logically precedes the conclusion that Congress can surrender core powers if it does so precisely and clearly. Clarity of intent does not justify behavior that is clearly discordant with the Framers’ intentions when vesting particular powers in Congress.
“Who are we to get in the way” of Congress divesting itself of powers? It is the justices’ job to police constitutional boundaries.
Roberts prudently husbands the court’s prestige on which its power depends. Prudence is not merely a virtue in governance, it is the foundational virtue on which the fulfillment of all others depends. But prudence, imprudently exercised, can vitiate other virtues. It does so when the court, hoarding prestige it should be wielding, flinches from telling Congress it cannot delegate some powers, regardless of how clearly it expresses its intention to do so.
Congress has suffered repeated humiliations from presidents — the current one especially, but many others, too. Increasing executive swagger, however, has not been primarily a consequence of presidents usurping congressional powers. Presidents have not needed to usurp what Congress has willingly — often by lackadaisical legislating — surrendered.
Careless journalism has probably exacerbated the current president’s sense of impunity. Repeatedly, when the Supreme Court has blocked — but has not assessed — lower courts’ rulings disapproving his policies, these Supreme Court actions have been misreported as affirming the legality of the president’s actions at issue. Repeatedly, overheated and underinformed media have rushed to proclaim the flimsiness of constitutional checks and balances. As much as Congress needs to be resuscitated, many media outlets need to be sedated.
The mills of our Madisonian system are supposed to grind slowly, the better to ensure deliberation and due processes. Regarding the president’s extravagant claims to tariff powers, the system worked quickly enough.
But in doing so, it demonstrated that there remains vital work to be done. With a strong nondelegation doctrine, the court could compel Congress to do the work that only it can properly — constitutionally — do.
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